Order — ECLI:EU:T:2018:201
Date: 2018-04-19
Language of the case: German
Court formation: Seventh Chamber
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: State aids;Competition
Procedure: Action for annulment - inadmissible
Origin: Germany

Order of the General Court (Seventh Chamber) of 19 April 2018 — Allergopharma v Commission (Case T‑354/15) (Action for annulment — State aid — Aid scheme providing for the grant of an exemption from the mandatory rebate on certain pharmaceutical products — Decision declaring the aid scheme compatible with the internal market — No individual concern — Act entailing implementing measures — Inadmissibility) 1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision terminating an aid proceeding — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions — Demonstration of significant harm to its market position — Criteria for assessment (Arts 108(2) and (3) TFEU and 263, fourth para., TFEU) (see paras 37-40, 44-46) 2. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures or not — Meaning — Court remedies available against such measures — Conditions for using objection of illegality or reference for a preliminary ruling on validity (Art. 19 TEU; Arts 263, fourth para., TFEU, 267 TFEU and 277 TFEU) (see paras 63-66, 74) 3. Fundamental rights — Right to effective judicial protection — Review of legality of EU measures — Procedures — Protection of that right by the EU judicature or by the national courts according to the legal nature of the contested measure (Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47) (see para. 71) 4. State aid — Planned aid — Grant of aid in infringement of the prohibition laid down by Article 108(3) TFEU — Later Commission decision declaring the aid compatible with the common market — Effect — Ex post facto regularisation of measures of national law concerning the grant of the aid — None — Irrelevance of the date of making an application for reimbursement (Art. 108(3) TFEU) (see paras 77, 78) 5. State aid — Compliance with EU rules — Role of the national courts — Safeguarding of the rights of individuals when the obligation to give prior notice has been infringed — Jurisdiction to order the recovery of non-notified aid, even subsequently declared compatible with the common market — Jurisdiction to rule on an application for compensation for the harm caused due to the illegal nature of such a measure (see para. 78) 6. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the internal market at the conclusion of the formal investigation procedure — Action of a competing undertaking not demonstrating the existence of significant harm to its market position — Participation in the preliminary examination phase of the aid — Insufficient basis on which to contest the merits of the decision 6. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the internal market at the conclusion of the formal investigation procedure — Action of a competing undertaking not demonstrating the existence of significant harm to its market position — Participation in the preliminary examination phase of the aid — Insufficient basis on which to contest the merits of the decision (Arts 108(3) TFEU and 263, fourth para., TFEU) (see paras 81-84) Re: Application based on Article 263 TFEU and seeking annulment of Commission Decision (EU) 2015/1300 of 27 March 2015 on the aid scheme — aid to German pharmaceutical companies in financial difficulties through the exemptions from mandatory rebates SA.34881 (2013/C) (ex 2013/NN) (ex 2012/CP) (OJ 2015 L 199, p. 27). Operative part 1. The action is dismissed as being inadmissible. 2. Allergopharma GmbH & Co. KG shall bear its own costs and pay those incurred by the European Commission. 3. Bencard Allergie GmbH shall bear its own costs. 2. Allergopharma GmbH & Co. KG shall bear its own costs and pay those incurred by the European Commission. 3. Bencard Allergie GmbH shall bear its own costs. 3. Bencard Allergie GmbH shall bear its own costs.