Judgment — ECLI:EU:T:2002:298
Date: 2002-12-05
Language of the case: German
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Applications by natural or legal persons;Formal investigation procedure;Pleas in law;Commission decision following a preliminary review or proceeding to the formal investigation procedure
Procedure: Action for annulment - interlocutory judgment
Origin: Germany

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Commission decision finding aid to be compatible 
with the common market without initiating the inter partes procedure — Party 
concerned within the meaning of Article 88(2) EC 
(Arts 88(2) and (3) EC and 230, fourth para., EC) 
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SUMMARY — CASE T-114/00 
2. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Commission decision finding aid to be compatible 
with the common market without initiating the inter partes procedure — Action 
brought by a party concerned within the meaning of Article 88(2) EC seeking to 
safeguard his procedural rights allegedly infringed by the failure to initiate the inter 
partes procedure — Whether admissible 
(Arts 88(2) EC and 230, fourth para., EC) 
3. State aid — Planned aid — Review by the Commission — Party concerned within 
the meaning of Article 88(2) EC — Operator whose competitive position is affected 
by the aid at issue 
(Art. 88(2) EC) 
4. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Commission decision finding aid to be compatible 
with the common market — Association formed to promote the collective interests of 
its members, some of whom are parties concerned within the meaning of Article 88(2) 
EC — Whether admissible 
(Arts 88(2) EC and 230, fourth para., EC) 
5. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Commission decision finding aid in the form of a 
scheme for the acquisition of land to be compatible with the common market — 
Association defending the property rights and interests of its members, who are 
operators in the agricultural and forestry sectors — Status as a grouping of parties 
concerned within the meaning of Article 88(2) EC — Whether admissible 
(Arts 88(2) EC, 230, fourth para., EC and 295 EC) 
6. Actions for annulment — Commission decision finding aid in the form of a scheme for 
the acquisition of land to be compatible with the common market — Association 
which, with the agreement of the Commission, played an active part in the formal 
procedure for the review of a previous version of the same scheme and in the informal 
discussions relating to the implementation of the decision originally adopted, finding it 
incompatible with the common market — Specific legal interest in bringing proceed­
ings for the defence of its negotiating position — Whether admissible 
(Arts 88(2) EC and 230, fourth para., EC) 
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AKTIONSGEMEINSCHAFT RECHT UND EIGENTUM v COMMISSION 
7. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Action admissible — Right to plead all the grounds 
of illegality listed in Article 230 EC 
(Art. 230, second para., EC) 
1. Where, without initiating the pro­
cedure under Article 88(2) EC, the 
Commission finds on the basis of 
Article 88(3) EC that aid is compatible 
with the common market, the persons 
intended to benefit from those pro­
cedural guarantees may secure com­
pliance therewith only if they are able 
to challenge the decision in question 
before the Court. Therefore, where, by 
an action for the annulment of a 
Commission decision taken at the end 
of the preliminary stage, an applicant 
seeks to secure compliance with the 
procedural guarantees provided for by 
Article 88(2) EC, the mere fact that it 
has the status of a 'party concerned' 
within the meaning of that provision is 
sufficient for it to be regarded as 
directly and individually concerned 
for the purposes of the fourth para­
graph of Article 230 EC. 
(see para. 44) 
2. Since the Treaty imposes on the Com­
mission the obligation, in connection 
with the review of State aid, to give the 
parties concerned the opportunity to 
submit their comments only in the 
context of the stage of the review 
provided for by Article 88(2) EC, those 
parties can assert the objectively dif­
ficult nature of the review to be carried 
out by the Commission and secure 
compliance with their procedural guar­
antees only if they have the opportunity 
of contesting before the Court of First 
Instance the decision not to initiate the 
procedure under Article 88(2) EC. 
Even where, in its action under the 
fourth paragraph of Article 230 EC, an 
applicant has not expressly alleged 
infringement by the Commission of 
the obligation to initiate the procedure 
under Article 88(2) EC, preventing the 
exercise of the procedural rights pro­
vided for thereby, it may be clear from 
the analysis of the pleas for annulment-
put forward in support of that action 
that the applicant is seeking to estab­
lish that the measures at issue pose 
serious difficulties as regards their 
compatibility with the common mar­
ket, difficulties which place the Com­
mission under an obligation to initiate 
the formal procedure, which it is 
required to do if an initial review has 
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SUMMARY — CASE T-114/00 
not objectively enabled it to overcome 
them all. 
(see paras 47-49) 
3. 'Parties concerned' within the meaning 
of Article 88(2) EC include not only 
the undertaking or undertakings bene­
fiting from the aid, but those persons, 
undertakings or associations whose 
interests might be affected by the grant 
thereof, in particular competing under­
takings and trade associations in the 
sector concerned. In order to be able to 
claim the status of a party concerned, 
an undertaking other than the recipient 
of the aid must demonstrate that its 
competitive position in the market is 
affected by the grant thereof. Where 
that is not the case, it does not have the 
status of a party concerned within the 
meaning of Article 88(2) EC. 
(see para. 51) 
4. Where some members of an associ­
ation, who are economic operators 
capable of being regarded as direct 
competitors of the beneficiaries of dis­
puted aid, are affected in terms of their 
competitive position by a Commission 
decision finding a State aid compatible 
with the common market, and would 
therefore, as 'parties concerned' within 
the meaning of Article 88(2) EC, be 
entitled to bring individual actions for 
annulment of that decision, it will be 
possible to regard that association as 
being entitled to bring an action 
against it in so far as that association 
was formed to promote the collective 
interests of its members. 
(see paras 53-54, 60) 
5. An association formed to defend the 
property rights and interests of its 
members, and in particular the interest 
of farmers and foresters in being able to 
obtain land despite their unfavourable 
position vis-à-vis the potential bene­
ficiaries of the land acquisition scheme, 
is in fact defending the commercial and 
competitive interests of those members. 
For that reason, the argument that such 
an association does not represent inter­
ests of undertakings but general social 
interests and that its action against the 
Commission decision authorising that 
scheme concerns only aspects relating 
to property law falling outside the 
C o m m u n i t y f r amework under 
Article 295 EC cannot be accepted. 
Consequently, it must be considered 
to be entitled to bring an action for 
annulment on behalf of its members 
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AKTIONSGEMEINSCHAFT RECHT UND EIGENTUM v COMMISSION 
who, as parties concerned within the 
meaning of Article 88(2) EC, could 
have done so individually. 
(see paras 62-63) 
6. An association which played an active 
part both in the formal review pro­
cedure which led to the adoption of an 
initial Commission decision declaring a 
scheme for the acquisition of land 
incompatible with the common market 
and ordering recovery of the aid and in 
the informal discussions relating to its 
implementation can be considered to 
be individually concerned by the 
decision declaring that scheme com­
patible following its modification by 
the national legislature, inasmuch as it 
claims a specific legal interest in bring­
ing proceedings because its negotiating 
position is affected by that decision. 
(see paras 65-66) 
7. In the context of an action for annul­
ment serving its interests and those of 
its members, it is permissible for an 
association which is individually and 
directly concerned by the contested 
measure to plead any of the grounds 
of illegality listed in the second para­
graph of Article 230 EC. Accordingly, 
it cannot be accused of having com­
mitted an abuse of process or a breach 
of the principle of the separation of 
legal remedies by bringing that action 
under Article 230 EC. 
(see paras 78, 82) 
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