Flašker: Court of Justice confirms its case law on the scope of the Commission’s obligation to initiate the formal investigation procedure
Today, the Court of Justice delivered its judgment in the case of Slovenia v Flašker and Commission (C‑447/22 P) and dismissed the appeal of the Republic of Slovenia against the General Court’s judgment Flašker v Commission (T-392/20).
In this case, the Republic of Slovenia sought to have set aside GC’s judgment annulling the Commission Decision closing the examination of Case SA.43546. According to the Court of Justice, the General Court could not be criticised for having erred in law in the definition of the applicable legal standard as regards the determination of the existence of ‘serious difficulties’.
Following a confirmation of its case-law in Commission v Tempus Energy and Tempus Energy Technology (C-57/19 P), the Court of Justice found that the General Court did not set the threshold of proof for the existence of serious difficulties too low. Referring to the obligation of sincere cooperation under Article 4(3) TEU alone does not suffice to dispel ‘serious difficulties’ or ‘doubts’ that the Commission may face after the preliminary examination of a measure brought to its attention by a complaint. To assume that doubts as to the existence or compatibility of an aid measure can be dispelled on the basis of mere assertions by the national authorities would not only completely defeat the purpose of the preliminary procedure under Article 108(2) TFEU but would also risk undermining the State aid control mechanism and the role assigned to the Commission.
For further information, see the Court of Justice’s judgement.