Opinion of the Advocate General — ECLI:EU:C:2007:73
Date: 2007-02-01
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Spain

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them (Arts 88 EC and 230, fourth para., EC) 2. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) 3. State aid – Commission decision finding a national measure compatible with Article 87(1) EC – Application by the Commission of the private creditor test (Art. 87(1) EC) 1. Persons other than those to whom a decision is addressed may claim to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed. With regard more particularly to the field of State aid, persons other than those to whom a decision is addressed who call in question the merits of a decision appraising the aid are regarded as being individually concerned by that decision where their position on the market is substantially affected by the aid which is the subject of the decision in question. In that regard, the mere fact that a measure may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it in a similar way to the undertaking in receipt of the aid. However, a particular position of that kind, which distinguishes a person other than the persons addressed from any other economic operator, does not necessarily have to be inferred from factors such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can have an adverse effect on the competitive situation of an operator in other ways too, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s position on the market cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance. (see paras 30-35) 2. The Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. (see para. 54) 3. The Commission makes a complex economic assessment when it examines whether particular measures can be described as State aid because the public authorities did not act in the same way as a private creditor. Whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The Community judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. However, when conducting such a review, the Community judicature must not substitute its own economic assessment for that of the Commission. Where a Community institution has a wide discretion, the review of observance of certain procedural guarantees is of fundamental importance. Those guarantees include the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision. (see paras 56-59)