Report 2011 - EFTA Court

undertakings competing in EEA
trade. in this regard, ESA is not
required to establish that such
aid has an appreciable effect on
trade between EEA States and
that competition is actually being
distorted, but only to examine
whether such aid is liable to affect
trade and distort competition.
7. Whether a national measure
constitutes “existing aid” not
subject to recovery, depends upon
the interpretation of the provisions
of Protocol 3 to the SCA, which
governs the procedure and the
powers of ESA in the field of State
aid. The purpose of Protocol 3 is
to enable ESA to examine and keep
under constant review aid granted
by the States or through State
resources. The Protocol makes
provision for separate procedures
of investigation, depending on
whether the aid concerned is
existing or new aid.
8. With respect to existing aid,
Article 1(1) of Part i of Protocol
3 gives ESA the power to keep
under constant review the aid
systems existing in the EEA States,
in cooperation with these States.
in the context of that review, it is
ESA’s task to propose to the EEA
States any appropriate measures
required by the progressive
development or by the functioning
of the EEA Agreement. Paragraph
2 of the same Article provides that
if ESA finds, after having given
notice to the parties concerned
to submit their comments, that
aid is not compatible with the
EEA Agreement, or that such aid
is being misused, it shall decide
that the EEA State concerned must
abolish or alter such aid within
aperiod of time to be determined
by ESA.
9. As for new aid, Article 1(3) of
Part i of Protocol 3 provides that
ESA is to be informed, in sufficient
time to enable it to submit its
comments, of any plans to grant
or alter aid. ESA then proceeds
to an initial examination of the
planned aid. if, at the end of that
examination, it considers that any
such plan is not compatible with
the EEA Agreement, it must initiate
the formal investigation procedure
provided for in Article 1(2) of Part
i of Protocol 3. in such a case,
the final sentence of Article 1(3)
of Part i of Protocol 3 prohibits
the EEA State concerned from
putting the proposed measures
into effect until the procedure has
resulted in a final decision. New aid
is therefore subject to preventive
control by ESA, and in principle
may not be granted until ESA has
declared it compatible with the EEA
Agreement.
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
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Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority