Judgment — ECLI:EU:T:2001:271
Date: 2001-11-22
Language of the case: German
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Applications by natural or legal persons;Commission discretion
Procedure: Action for annulment - successful
Origin: Germany

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Whether directly affected — Criteria — Examination 
of aid granted by States — Commission decision declaring the extension of the period 
for completion of investment projects qualifying for a premium incompatible with the 
common market — Undertakings entitled to the premium are directly affected 
(EC Treaty, Art. 93(2) (now Art. 88(2) EC), and Art. 173, fourth para, (now, after 
amendment, Art. 230, fourth para., EC)) 
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SUMMARY — CASE T-9/98 
2. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Commission decision, addressed to a Member State, 
finding that State aid is incompatible with the common market — Decision which, as 
regards the potential beneficiaries of the aid, has the appearance of a measure of 
general application — Recipient undertaking placed in a factual situation which 
distinguishes it from all other traders — Whether admissible 
(EC Treaty, Art. 93(2) (now Art. 88(2) EC), and Art. 173, fourth para, (now, after 
amendment, Art. 230, fourth para., EC)) 
3. State aid — Prohibition — Derogations — Commission's discretion — Differentia­
tion between the beneficiaries of the notified aid scheme 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
1. To be of direct concern to a private 
applicant for the purposes of the fourth 
paragraph of Article 173 of the EC 
Treaty (now, after amendment, the 
fourth paragraph of Article 230 EC), 
the Community measure must directly 
affect the applicant's legal situation and 
its implementation must be purely 
automatic and result from Community 
rules alone without the application of 
other intermediate rules. The same 
applies where the opportunity for 
addressees not to give effect to the 
Community measure is purely theore­
tical and their intention to act in 
conformity with it is not in doubt. 
It follows that the legal position of an 
undertaking entitled to an investment 
premium is directly affected by the 
Commission decision declaring a pro­
vision of the fiscal law of a Member 
State prolonging the period within 
which the investment project must 
have been completed in order to qua­
lify for that premium to be incompa­
tible with the common market, in so 
far as the repeal obligation in that 
decision necessarily had the conse­
quence of requiring the national autho­
rities to recover the sums paid to the 
applicant. 
(see paras 47-48, 50, 52) 
2. Persons other than the addressees of a 
decision may claim to be individually 
concerned within the meaning of the 
fourth paragraph of Article 173 of the 
EC Treaty (now, after amendment, the 
fourth paragraph of Article 230 EC) 
only if the decision affects them by 
reason of certain attributes peculiar to 
them or by reason of factual circum-
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MITTELDEUTSCHE ERDÖL-RAFFINERIE v COMMISSION 
stances differentiating them from all 
other persons and, as a result, distin­
guishes them individually in like man­
ner to the person addressed. 
A Commission decision prohibiting 
generally the application of a national 
tax provision of general application 
laying down a fiscal investment pre­
mium, although addressed to the Mem­
ber State concerned, has the appear­
ance, as regards the potential benefici­
aries of that provision, of a measure of 
general application covering situations 
which are determined objectively and 
entailing legal effects for a class of 
persons envisaged in a general and 
abstract manner. However, such a deci­
sion cannot be regarded as affecting an 
undertaking solely by virtue of its 
objective capacity as a potential recipi­
ent of the investment premium, in the 
same manner as any other operator 
who is, or might be in the future, in the 
same situation, unless there are a 
number of factors which place the 
applicant in a situation which differ­
entiates it from all other operators. 
(see paras 75-78) 
3. The fact that, formally, the Commis­
sion has been notified of an aid scheme 
does not prevent it from examining its 
application in a particular case, as well 
as making a general and abstract 
examination of the scheme. Similarly, 
in the decision it adopts following its 
examination, the Commission can con­
sider that some specific applications of 
the aid scheme notified constitute aid 
while others do not, or can declare 
certain applications only to be incom­
patible with the common market. In 
the exercise of its wide discretion, it 
may differentiate between the benefici­
aries of the aid scheme notified by 
reference to certain characteristics they 
have or conditions they satisfy. An 
examination of the specific case of 
one of the undertakings to benefit from 
the notified aid scheme applicant may 
be required not only in view of the 
particular features of its situation but 
also because, during the administrative 
procedure, the Government of the 
Member State concerned had expressly 
asked for that to be done. 
(see paras 116-117) 
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