Opinion of the Advocate General — ECLI:EU:C:2009:256
Date: 2009-04-23
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: Netherlands

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme (Art. 230, fourth para., EC) 2. State aid – Commission decision declaring a State aid scheme incompatible with the common market and providing for a transitional scheme – Transitional measures in favour of undertakings benefiting from that scheme – No transitional measures in favour of undertakings having applied for first authorisation only – No breach of the principles of protection of legitimate expectations and of equal treatment (Art. 88(2), first para., EC) 1. Under the fourth paragraph of Article 230 EC, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to him or it. As regards the second condition set out in Article 230 EC, the fact that a disputed provision is, by its nature and scope, a provision of general application inasmuch as it applies to the traders concerned in general, does not of itself prevent it being of individual concern to some. However, natural or legal persons may claim that a contested provision is of individual concern to them only if it 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. An undertaking cannot, in principle, contest a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis that undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner. By contrast, where a contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders. (see paras 47, 51-54) 2. The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a Community institution has caused him to entertain expectations which are justified by precise assurances provided to him. However, if a prudent and alert economic operator could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted. Furthermore, even if the European Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change. In the absence of an overriding public interest, the Commission will have infringed a superior rule of law if it fails to couple the repeal of a set of rules with transitional measures for the protection of the expectations which a trader might legitimately have derived from the Community rules. A breach of the general Community law principle of equal treatment arises through the application of different rules to comparable situations or the application of the same rule to different situations. As regards a Commission decision declaring incompatible with the common market a specific tax scheme for the international financing activities of undertakings which are members of a group, and providing for a transitional scheme exclusively for the beneficiaries of that tax scheme and not for those whose requests for first authorisation were pending on the date of that decision, the position of an applicant for first approval who has not referred to investments already made or commitments already entered into is different from that of beneficiaries who have made investments and undertaken commitments in the past, at a time when the legality of that tax scheme had not been in doubt, and who would have therefore suffered losses if the transitional measures had not been adopted in their favour. In those circumstances the Commission has not breached the principles of protection of legitimate expectations and of equal treatment respectively, by restricting the benefits of a transitional scheme to the beneficiaries of that tax scheme alone. (see paras 84-86, 88, 91, 94, 100-102)