Order — ECLI:EU:T:2013:105
Date: 2013-03-07
Language of the case: English
Court formation: Fifth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - inadmissible
Origin: United Kingdom

summary of the comments of the French Republic, which considers the applicant to be dominant on the refining and petrochemicals market. As the Commission rightly points out, recital 203 refers to ‘competitors’ (in the plural) of the beneficiaries of the aid at issue and not only to UOP, even though it mentions UOP’s large world market share. Thus those recitals do not support the applicant’s assertion. 52 Nor do other recitals of the contested decision show that the applicant has the unique position it claims to have. First of all, the Commission describes UOP’s role in the administrative procedure (recitals 5, 9 and 12). It then summarises the comments submitted by UOP in its capacity as an interested party (recitals 84 to 93) and the French Republic’s response to those comments [confidential] (recitals 95 to 104 [confidential]). In the context of its assessment of the measures in question (recitals 115 to 206), the Commission mentions UOP in only six recitals, two of which have already been considered in paragraphs 35 and 51 of this judgment. Recital 148 compares IFP’s deficit with a figure put forward by UOP. Recitals 163 and 182 refer to a request from UOP that the Commission take a decision and to an argument put forward by UOP which the Commission did not accept. Lastly, recital 204 cites UOP as an example of one of the competitors of IFP and Axens which also enjoy State support for research. 53 With regard, secondly, to the argument which the applicant puts forward in its observations on the statement in intervention that the negative impact of State aid is particularly acute on markets which operate on the basis of invitations to tender, since the participation of a State aid beneficiary will influence the final licence price even if the beneficiary is not ultimately successful, the Court finds that it is not supported by any specific facts. Even if that argument is correct, the applicant does not establish any link between the specific measure at issue and the alleged substantial effect on its position on the relevant market. Thus, as regards the example of the tender of PKN Orlen in the aromatics field, which is mentioned in point 13 of the applicant’s observations on the statement in intervention, the applicant has not even established that Axens competed in the tender, its arguments in this respect representing no more than a contrario inferences drawn from arguments in the statement in intervention. 54 Thirdly, the Court observes that the argument put forward by the applicant in its observations on the statement in intervention that it has a special market position on the isomerisation C4 and C5/6 process market and on the reforming (platforming) continuous regeneration and hydrocracking markets is based on a mere interpretation of arguments raised by the intervener. In its statement in intervention, IFP contends that the applicant is dominant in relation to several processes. 55 The arguments relating to the isomerisation C4 and C5/6 process and catalyst regeneration are not substantiated by any specific evidence. In any event, the applicant does not establish a link between the measure which is the subject of the contested decision and the alleged substantial effect on its position on the markets alleged to be relevant. 56 With regard, fourthly, to the evidence before the Court which the applicant claims supports the conclusion that it is individually concerned by the contested decision, the Court does not find that evidence persuasive either. Annexes A.6 and A.7 to the application give details of the range of technologies offered by UOP, but do not describe the competitive situation in the aromatics segment apart from a statement (on page 76) that UOP is the world leader in aromatics technologies. Annex B.7 to the defence contains the French’s Republic’s reply to the questions raised by the Commission concerning the innovation process on the market concerned. According to the French Republic, the petrochemical technologies market, in particular aromatics, evolved significantly from 2004 onwards and the ‘opening-up of the market’ obliged UOP to improve its offer in order to remain competitive (page 119). Thus no link has been established between the aid at issue and the market entry of IFP and Axens, or between that aid and UOP being obliged to improve its offer. The alleged detrimental effect of the R&D aid at issue on the applicant’s competitive position 57 In the second place, the applicant submits – again with a view to showing that its market position was substantially affected and on the premiss that R&D is particularly important in the area of the process licensing and catalyst industry – that the aid which is the subject of the contested decision had a ‘direct effect on … [its] distinct competitive position’. In the reply, it states that ‘the State aid strengthens the competitive position of IFP which, at least in the area of aromatics where only the applicant and Axens are active, necessarily correlates with a weakening of the applicant’s competitive position’. It must first of all be noted, as has been established above, that neither the contested decision nor the evidence adduced by the applicant shows that Axens and UOP were the only undertakings active on any market or market segment. 58 Next, it should be observed that it is common ground between the parties that R&D activities are particularly important in the area referred to in paragraph 57 above. The Commission notes, in recital 201 of the contested decision, that the proportion of the aid beneficiaries’ turnover accounted for by R&D expenditure is particularly high and much higher than the figure for the sector. As the applicant points out, it is in fact apparent from recital 190 of the contested decision that the number of projects carried out by IFP for Axens and Prosernat in their respective areas of activity increased by 41% between 2003 and 2006. However, that does not mean that the applicant’s competitive position was affected differently in comparison with that of other competitors of Axens and Prosernat or that the number of R&D projects carried out by the beneficiaries is related to the aid. The same is true of the argument concerning the increase in Axens’ revenues from process licensing during that period, an issue considered in paragraph 64 below. 59 Finally, it is appropriate to examine the other arguments and evidence concerning whether the applicant’s position was affected as a result of the aid for R&D activities. 60 Firstly, it is apparent from recital 200 of the contested decision that the expenditure and staff allocated to R&D by IFP and its subsidiaries Axens and Prosernat in the subsidiaries’ exclusive fields of activity increased over the period 2003 to 2006, as the applicant notes. The Commission points out however that that increase occurred despite the amount of aid being reduced by 41% over that period. The applicant is incorrect when it maintains that recital 200 shows that the aid affected it significantly and individually. 61 Secondly, the applicant submits that Annex B.8 to the defence ‘cited to the direct effect R&D aid has on [its] distinct competitive position’. That annex contains a letter submitted by the applicant during the administrative procedure in which it points out the importance of R&D activities in the hydrocarbons industry and gives an estimate of the proportion that those activities represent of the revenues of the various competitors on the process technology and catalyst production markets, as well as a description of the risks which legislative developments entail for that type of activity in the petrochemical sector. In that letter, the applicant asserts that the grant of aid has a more distortive effect in that sector but does not explain the particular impact on its own situation. It follows that Annex B.8 does not substantiate its argument. 62 Thirdly, the applicant mistakenly refers to recital 152 of the contested decision. That recital states that ‘IFP benefits, for its commercial activities with the exception of the field of activity of its subsidiary Beicip-Franlab, from partial public financing, which constitutes a selective advantage insofar as it is granted to only one enterprise’. 63 On the assumption that the applicant intended to refer to recital 154 of the contested decision, in which the Commission states ’that any contribution to activities in the fields of activity of Axens and Prosernat strengthens the competitive position of IFP and its subsidiaries and potentially involves a distortion of competition’, the Court refers to the observations made in paragraph 58 above. 64 Fourth and finally, the applicant’s argument that Axens’ process licensing sales increased by 72% between 2004 and 2006 cannot succeed either (see Annex A.12 pages 211, 277 and 347). As is apparent from paragraph 57 above, the applicant has not established that Axens and itself were the only undertakings present on the market. Accordingly, that argument does not show that the applicant’s market position was substantially affected in a different way from Axens’ other competitors. The Court observes in this connection that the applicant does not maintain that this was the case for the whole area of process licensing, but only for aromatics (see also paragraphs 39 to 44 above). 65 It follows from all the foregoing considerations that the applicant has not established that its market position was substantially affected by the aid which is the subject of the contested decision. 66 Accordingly, the applicant cannot be regarded as individually concerned by the contested decision. 67 Consequently, the action must be dismissed as inadmissible and there is no need to adjudicate on whether the applicant is directly concerned by the contested decision or to examine the plea that the action is inadmissible because it was brought out of time. Costs 68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs incurred by the Commission and the intervener, in accordance with the forms of order they have sought. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby orders: 1. The action is dismissed as inadmissible. 2. UOP Ltd shall bear its own costs and pay those incurred by the European Commission and IFP. Luxembourg, 7 March 2013. E. Coulon S. Papasavvas Registrar President * Language of the case: English.