European State Aid: (No) access to file in State Aid procedures for beneficiaries and competitors?

Last year the European Commission has adopted a State Aid Modernisation (SAM) package, introducing new Guidelines, a new General Block Exemption Regulation and a new Procedural Regulation amongst others. It was expected that this would be an opportunity for the Commission to address the question of third parties’ right to access the Commission’s files when challenging the Commission’s decision in front of the European Courts and when taking private lawsuits against governments granting aid. However, the Commission did not use this opportunity to clarify this procedural aspect of state aid law. On the one hand the rights of third parties in state aid procedures have remained the same, with no access to the Commission's file throughout the procedure as third parties can only rely on the evidence presented in the final decision. On the other hand the Commission gained new powers to gather market data directly from companies without involving the Member States.

In light of this situation, a complaint has been filed with the European Ombudsman in July 2014 (case 1179/20147MMN), claiming that companies affected by probes into illegal aid do not have sufficient access to files. The complaint is grounded on a violation of their rights to good administration and a fair trial enshrined in the Charter of Fundamental Rights. The complainant further claims that the Commission’s practice in this respect is inconsistent with antitrust procedures. Despite a different legal framework of antitrust and state aid procedures, the beneficiary’s right to access the files safeguards the same fundamental right common to both procedures, right to a fair trial. This right is respected in the field of antitrust law but has been neglected in the field of state aid law. Under current legislation third parties can only rely on the evidence presented in the Commission’s decision which puts them into a disadvantaged position if they challenge the Commission’s decision in front of the European or national courts. The Commission responded to this claim that its procedures are fair, in line with currently revised legislation and that contrary to antitrust investigations, state aid procedure is conducted between the regulator and the government, while the companies are not directly involved as parties of the procedure.

As the complainant did not refer to maladministration which is the scope of the Ombudsman’s powers it seems likely that the complaint will be discharged as inadmissible. Accordingly, the companies will not be able to rely on the access to file. It therefore seems that, once again, the interests of third parties in state aid procedures will be put aside and companies will have to wait for another opportunity to address this issue.