On 16 May 2013, the European Court of Justice ("ECJ") dismissed an appeal of the European Commission (the "Commission") against a judgment of the General Court ("GC") that held that the Commission failed to act within the meaning of Article 265 TFEU. On the basis of this article, the ECJ can establish that a Community institution (e.g. the Commission) has failed to act. In the present case, the Commission was found to have failed to adopt a decision on complaints by Ryanair concerning alleged unlawful state aid granted to Alitalia (C-615/11 P).
Ryanair had informed the Commission of alleged state aid through multiple letters in 2005 and 2006. When the Commission did not react to Ryanair's complaints, Ryanair sent a formal letter to the Commission demanding it to act on its complaint on the basis of Article 265 TFEU. Thereafter, Ryanair successfully brought an action before the GC, which declared that the Commission had failed to define its position on Ryanair's complaints of alleged state aid granted by the Italian government to Alitalia. The Commission appealed the GC's judgment before the ECJ, claiming in essence that the GC had misinterpreted Articles 10(1) and 20(2) of Regulation 659/1999 (the State Aid Regulation) and erred in the finding that Ryanair's letters were "complaints".
The ECJ dismissed these appeals as unfounded. It noted that on the basis of Article 20(2) of Regulation 659/1999, any interested party may inform the Commission of any alleged unlawful state aid. On the basis of Article 10(1) of Regulation 659/1999 the Commission is required to examine the possible existence of state aid and its compatibility with the internal market when it possesses information regarding alleged unlawful state aid. Information provided to the Commission on the basis of these articles is not subject to any formal requirements. The information should enable the Commission to identify the beneficiary of the alleged unlawful aid, the nature of the advantage granted to that beneficiary and the mechanism by which that advantage has been granted. Where the obligation of Article 10(1) is triggered, the Commission must adopt a decision setting out its position on the information provided. The ECJ found that the GC did not err in law by holding that the letters sent by Ryanair triggered an obligation for the Commission to adopt a decision and that by failing to do so, the Commission failed to act, thereby breaching Article 265 TFEU.