Judgment_paragraph 89 · European Commission v Freistaat Bayern and Others (C-167/19 P)

89As regards the question whether, as the Commission maintains, the Court erred in law by holding that the obligation laid down by the first sentence of Article 6(1) of Regulation No 659/1999 to summarise, in an opening decision, the issues of fact and law that are relevant for the formal procedure of the investigation of the compatibility of an aid measure with the internal market is in the nature of an essential procedural requirement, within the meaning of the second paragraph of Article 263 TFEU, like the obligation to initiate such a procedure under Article 108(2) TFEU, it should first be borne in mind that the Court has already ruled that it follows from Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999 that where the Commission decides to initiate a formal investigation procedure in respect of proposed aid, it must give the interested parties, including the undertaking or undertakings concerned, an opportunity to submit their comments and that that obligation is in the nature of an ‘essential procedural requirement’ (see judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, pargraph 55). That characteristic follows from the fact that such an obligation is an essential procedural requirement that is intrinsically linked to the correct formation or expression of the intention of the author of the act.