29 août 2011

EFTA Court orders opening a formal State aid investigation procedure against the will of the European Commission, Konkurrenten, E-14/10

I like this judgment of 22/08/2011, since it shows how a competitor may successfully attack a decision of the EFTA Surveillance Authority or the European Commission (both had the same view here) not to open the formal investigation procedure.

From 1997 to 2004 bus enterprise SA Oslo Sporveier owned by the Oslo City got an aid of NOK 1.124 billion (€ 144.4 million, §§ 17-18). Competitor bus company Konkurrenten.no SA lodged a complaint, and in 4 years received a Surveillance Authority decision not to open the procedure. The EFTA Court considered that it was not clear whether this aid had not been excessive for the purpose of compensating the operation of non-profitable scheduled bus services, and whether the aid had been kept separate from any other commercial activities carried out by Oslo Sporveier, such as operating tour buses (§ 77).

The Surveillance Authority supported by the European Commission tried to convince the Court that it was an existing aid, and therefore compatible with the EEA law. They argued that the difficulty in this kind of calculation was ignorable, since in general the aid had been "existing".

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