By its order of 17 February 201139 the General Court declared inadmissible the action for annulment of RapidEye AG against the decision presumably contained in a letter of the Commission of 9 June 2009 because that letter was not an act susceptible for action under Article 263 TFEU.

In 2002 Germany notified a state aid measure to the Commission. The Commission cleared this aid for the amount of EUR 37,317,000 and with an aid intensity of 30.22%. In 2009, however, the German authorities informed the Commission that the granted amount of aid and the intensity of the aid exceeded the figures mentioned in the clearance decision. According to the German authorities this was due to the fact that it granted tax subventions to RapidEye based on another aid scheme (tax subventions which were not notified) which led to the situation that, even taking into account the fact that the German authorities did not grant the last tranche of 25% of the cleared aid, the total amount of aid granted was higher than the aid cleared. In those circumstances the German authorities sought the confirmation from the Commission that RapidEye could keep the aid which remained below the maximum admissible aid intensity of 35% that was stated in the clearance decision of 2002 (including the amount of tax subventions).

In its response the Commission noted first that the last tranche of 25% was granted to RapidEye although RapidEye did not respect the conditions imposed in the clearance decision to benefit from that last tranche.  

Secondly, the Commission noted that the maximum aid intensity that it cleared was 30.22% and not 35%, and that all the aid exceeding this aid intensity (and the corresponding maximum amount of EUR 37,317,000) should be notified to the Commission. On those grounds the Commission asked Germany first to respect the clearance decision of 2002 and to confirm that all aid that exceeded the maximum amount cleared in that decision be recovered, and second, to recover the last tranche of 25% of aid that it granted to RapidEye. It is against this decision that RapidEye launched an appeal.  

The General Court started off by repeating that an application based on Article 263 TFEU is open against all measures adopted by the Union’s institutions, irrespective of their nature or form which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position.

In this case the Court had to determine, taking into account the substance of the act and the intention of the Commission, whether the Commission has definitively established its position on the state measure under review vis-à-vis Article 107 TFEU. In that light, it is important to note that when the Commission—in exercise of its general mission of control concerning state aid— controls the respect of prior state aid decisions, this does not lead to the adoption of a definitive and legally binding decision for all cases. It is, for instance, possible that the Commission limits itself to repeating what was decided in the previous decision and thus only takes an interpretative or confirmative decision. This is the case when the act does not contain any new element when compared to the old decision and was not preceded by a re-examination of the situation of the addressee of the old decision. The situation is different when the new act follows a request of the national authorities containing new and substantial facts that justify a re-examination and lead to a decision which contains new legal and factual elements not covered by the old decision, or when the request of the national authorities is to be regarded as a notification of aid within the meaning of Article 2 of Regulation 659/1999 which imposes on the Commission the obligation to take a decision according to Article 4 of that Regulation.

The Court continued and examined whether the request of the German authorities can be considered as a notification of aid and whether the substance of the letter of the Commission contained new elements not covered by the previous decision.  

As to the first question (whether the request is a notification of aid), the Court held that the request of the German authorities cannot be considered as a notification. Their request sought in essence an interpretation by the Commission of its previous decision (can RapidEye keep the state aid provided it remain below a state aid intensity of 35%). This cannot be considered as a formal notification of a new state aid measure, especially considering that the request of the German authorities did not contain any information which would allow the Commission to verify whether the subsidies exceeding the intensity of 30.22% but below 35% were compatible with Article 107 TFEU.  

As to the second question (whether the letter of the Commission contained new factual or legal elements not covered by old decision), the Court first of all noted that a distinction had to be made between the points of the letter of the Commission dealing with the interpretation of the initial decision and those points dealing with the recovery of the aid. With regard to the former, the Court concluded that the three conclusions reached by the Commission (i.e., the last tranche of 25% of aid was given in violation of the conditions imposed in the initial decision, the initial decision fixed the maximum aid intensity at 30.22% and not at 35%, and any aid above the maximum amount should have again be notified) do not exceed the limits of the interpretation of the initial decision and thus do not produce any autonomous legal effects justifying the qualification of the letter as an act susceptible for action under Article 263 TFEU. With regard to the points of the letter dealing with the recovery of the aid, the Court noted that the Commission asked two things: One, the Commission asked the German authorities to respect the initial decision and to confirm that any aid above the authorised maximum has been recovered, and two, the Commission asked the German authorities to recover the last tranche of 25% of authorised aid. Concerning the first request, the Court noted that this request does not produce any autonomous legal effects but merely repeats the obligations following from the initial decision. Concerning the second, the Court admitted that this could constitute a legally binding decision. However, the request of the Commission is based on a manifest incorrect interpretation of the communication from the German authorities. In fact the last tranche of 25% of the authorised aid has never been accorded to RapidEye. Therefore, the request of the Commission cannot produce any legal effects.  

Consequently, the letter of the Commission did not produce any autonomous legal effects and was thus not an act susceptible of appeal under Article 263 TFEU.