Judgment — ECLI:EU:T:2006:137
Date: 2006-05-31
Language of the case: Dutch
Court formation: Second Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Formal investigation procedure;Pleas in law;Commission decision following the formal investigation procedure;Beneficiaries of the aid to be recovered;Obligations of the Member States
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary of the Judgment 1. Actions for annulment – Interest in bringing proceedings (Art. 230, fourth para., EC) 2. Actions for annulment – Staying of proceedings before the Court of First Instance pending resolution of a case before the Court of Justice involving the validity of the same act (Statute of the Court of Justice, Art. 54, third para.) 3. State aid – Definition (Art. 87(1) EC) 4. State aid – Commission decision declaring an aid scheme incompatible with the common market (Art. 88(2) EC) 5. State aid – Commission decision declaring an aid scheme incompatible with the common market – Difficulties in implementing 6. State aid – Examination by the Commission – Administrative procedure – Obligation for the Commission to put the parties concerned on notice to submit their observations (Art. 88(2) EC) 1. An action for annulment brought by a natural or legal person is not admissible unless the applicant has an interest in seeing the contested measure annulled. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision. That is not the case for an undertaking which brings an action for annulment of a Commission decision declaring State aid granted to it to be incompatible with the common market and ordering recovery of the amounts paid if, in the light of the agreement between the Commission and the Member State concerned and following their collaborative effort to resolve the difficulties in implementing that decision, that undertaking is no longer subject to any obligation to repay. (see paras 33-35) 2. Where the validity of the same decision is at issue in cases pending before both the Court of Justice and the Court of First Instance and the Court of First Instance has found it necessary to stay the proceedings pending judgment by the Court of Justice, the pleas in law and arguments which have been rejected previously by the Court of Justice will not necessarily be rejected automatically as inadmissible before the Court of First Instance, on two grounds. First, the staying of the proceedings before the Court of First Instance pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice pending resolution of a case before the Court of Justice where, as in the present case, the validity of the same act is at issue does not remove the Court of First Instance’s jurisdiction over the case in which proceedings have been stayed and it retains full and exclusive jurisdiction to recommence hearing the case when the stay of proceedings is ended. Second, the principle of upholding the rights of the defence does not permit pleas in law validly put forward before one court to be rejected by another court before which the applicant in that action has not had the opportunity to appear and present argument. Although the principle of the sound administration of justice, to the manifestation of which the parties contribute by their conduct, may lead the parties to restrict their action and their defence to those questions which raise genuine differences from those already decided upon by the Court of Justice, it is not for the Court of First Instance to act of its own motion to impose those restrictions in the place and stead of those parties by dismissing as inadmissible certain pleas in law previously put forward before the Court of Justice. However, a non-constructive attitude on the part of a party is likely to result in costs that are unnecessary for the resolution of the dispute and may be taken into account when costs are awarded. However, although the Court of First Instance may have previously held that a stay of proceedings was necessary given that the validity of the same act was at issue both before it and before the Court of Justice, and although it goes without saying that the answer provided by the Court of Justice in that context must be respected, it is nevertheless for the Court of First Instance, which judges the merits of the case, to ascertain whether the solution given by the Court of Justice may be applied to the case before it in the light of any differences of fact or of law. If there are differences, it is for it to rule on the question of whether those differences call for a solution different from the one upheld by the Court of Justice. If there are no such differences and if one of the parties insists on putting forward pleas in law identical to those already rejected by the Court of Justice, the Court of First Instance may also decide to reject those pleas, by reasoned order, as being manifestly unfounded. (see paras 36-39) 3. The Commission is entitled to find that a Member State, by granting aid to service station dealers as compensation for losses of income resulting from increases in excise duty on light oil, assumes, in fact, all or part of the obligations assumed by the oil company supplying those stations under an exclusive purchasing agreement including a ‘price management system clause’ stipulating that the oil company must bear part of the cost of the forecourt discount granted by those dealers in so far as domestic and/or international market conditions make a temporary or long-term adjustment of these discounts desirable or necessary. It is thus through that oil company that the aid must be recovered if it is incompatible with the common market. That aid must thus be recovered from the oil company, even though that price management system clause is not necessarily overriding and/or automatic in nature, because of the right reserved for that company not to use that clause, since the clause is intended to be applied and the company did in fact apply it in the circumstances described by the Commission. (see paras 53-55, 60-62) 4. The Commission, when it is faced with an aid scheme, is generally not in a position – nor is it required – to identify exactly the amount of aid received by individual recipients. (see para. 67) 5. Where a Member State has pleaded difficulties in implementing the Commission’s decision on aid and has resolved those difficulties by cooperating in good faith with the Commission, the implementation measures ultimately adopted by that Member State fall to be assessed by the national court. This is so even where the Commission has given its approval to the implementation proposed by the Member State concerned. That approval merely serves to express the Commission’s opinion as to whether that implementation is acceptable from a Community point of view, in the light of the difficulties in implementation encountered by that Member State, but it does not in any way affect the responsibility of the Member State concerned as to the identification and method of resolving those difficulties. If there were to be a dispute concerning the recovery of the aid after that approval, in particular with respect to the findings of fact contained in the contested decision or in the light of the precise quantification of the actual advantage to be recovered, it would be for the national court to resolve those remaining difficulties in implementation through its national rules, having regard to the contested decision and, if necessary, having regard to those remaining difficulties, bearing in mind the Commission’s approval. In case of doubt, the national court always has the possibility of referring inquiries to the Commission by virtue of the principle of sincere cooperation or of referring a question to the Court of Justice for a preliminary ruling. (see paras 67, 69) 6. The administrative procedure regarding State aid is opened only against the Member State concerned. Undertakings that receive aid are considered only to be interested parties in this procedure. It follows that, far from enjoying the same rights to a fair hearing as those which individuals against whom a procedure has been instituted are recognised as having, an undertaking which is the recipient of State aid has only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case. Under Article 88(2) EC, the Commission has a duty to put the interested parties on formal notice to put forward their comments during the formal investigation phase. With regard to that duty, the publication of a notice in the Official Journal of the European Communities is an appropriate means of informing all interested parties that a procedure has been initiated, and the sole aim of that communication is to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action. Accordingly, an undertaking which is the recipient of State aid may not plead infringement of the principle of sound administration on the ground that the Commission did not specifically solicit its comments regarding the aid investigation procedure. By contrast, the Commission is obliged duly to place the interested parties in a position to put forward their comments in the course of a formal investigation procedure. Although that obligation does not require the Commission, when it merely has serious doubts as to the compatibility of the financial measure in question with the common market, to present a complete analysis on the aid in question in its notice of intention to initiate that procedure, it must, however, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments. (see paras 80-83, 85)