Report 2011 - EFTA Court

First part: Renewal of the concession
37. The applicant bases its claim on Article 1(c) of Part ii of Protocol
3 SCA, according to which alterations of existing aid are to be
considered as new aid. Konkurrenten submits that Member States
are not at liberty to prolong existing aid beyond the original expiry
date. it argues that the new concession constituted a new aid
measure or, at least, that the prolongation of the aid by more
than eight years was a material alteration of that aid. 12
38. To Konkurrenten, the 2001 concession, being a new concession,
cannot be considered a measure that is “still applicable” in the
sense of Article 1(b)(i) of Part ii of Protocol 3 SCA. it also refers
to Article 1(b)(v) of Part ii of Protocol 3 SCA which provides
that existing aid ceases from “the date fixed for liberalization”,
pointing out that the local bus market was liberalised in Norway
since 1994, and has been open to competition in the EEA since
1995. Nor could a new concession be regarded as a “modification
of a purely formal or administrative nature” in the meaning of
Article 4(1) of Regulation 794/2004. 13
39. Konkurrenten submits that its reading of Protocol 3 SCA is
corroborated by the rationale of the concept of existing aid. in its
view, Article 1(b) is intended to create only a transitional period in
order to protect legitimate interests and legal certainty. However,
recipients as well as the Member State concerned are well aware
that once the expiry date of an aid has passed, Member States
have a duty to loyally notify plans to reintroduce or continue aid.
The interpretation advanced in the decision would allow Member
12 Reference is made to Case T-332/06 Alcoa v Commission [2009] ECR ii-29, paragraphs
128–129; Joined Cases T-127/99, T-129/99 and T-148/99 Diputación Foral de Álava
and Others v Commission [2002] ECR ii-1275, paragraph 175; Joined Cases T-227/01
to T-229/09, T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Others v
Commission [2009] ECR ii-3029, paragraphs 232–233; Case T-109/01 Fleuren Compost
v Commission [2004] ECR ii-127, paragraph 80 [sic]; Case T-190/00 Regione Siciliana v
Commission [2003] ECR ii-5015, paragraph 73; and Joined Cases C-346/03 and C-529/03
Atzeni and Others [2006] ECR i-1875, paragraphs 51–54.
13 Commission Regulation (EC) 794/2004 of 21 April 2004 implementing Council Regulation
(EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC
Treaty, as adopted by Authority Decision No 195/04/COL.
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