Opinion of the Advocate General — ECLI:EU:C:2013:336
Date: 2013-05-29
Language of the case: Dutch
Subject matter: State aids;Competition
Procedure: Application to intervene;Action for annulment;Appeal - successful
Origin: Netherlands

Summary 103. First and foremost, I take the view that the appellants have a legal interest in bringing proceedings for annulment. 104. Secondly, I am of the opinion that the General Court erred in law in failing to examine the applicability of the fourth paragraph, in fine, of Article 263 TFEU to the present case. I therefore propose that the Court should allow the appeal. 105. In this regard, it follows from the first paragraph of Article 61 of the Statute of the Court of Justice that, if the appeal is well founded, the Court may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 106. In the present case, I consider that the Court is in possession of the information necessary to enable it to give final judgment on the issue of admissibility. 107. I note in this connection that the conditions laid down in order to bring an action for annulment on that basis — namely, that there must be a regulatory act which is of direct concern to the appellants and does not entail implementing measures — have been met. 108. If the Court does not share my view, I consider that the General Court erred in law in its assessment of the condition relating to individual concern. That condition has, in my view, been satisfied in respect of the appellants. Accordingly, the General Court ought to have declared the action brought by the appellants to be admissible and, since their second ground of appeal is well founded, their appeal should be allowed. 109. By contrast, I do not think that the Court is in a position to give judgment on the merits of the action lodged by the appellants since the assessment carried out by the General Court deals exclusively with the admissibility of the action and does not address the merits. 110. The case must therefore be referred back to the General Court for a decision on the appellants’ pleas that the contested decision, in so far is it relates to aid measure E 2/2005, should be annulled. VI – Costs 111. As the case is to be referred back to the General Court, the costs relating to the present appeal proceedings must be reserved. VII – Conclusion 112. In the light of the foregoing considerations, I propose that the Court should: (1) set aside the order of the General Court of the European Union delivered on 16 December 2011 in Case T‑202/10 Stichting Woonlinie and Others v Commission; (2) declare the action to be admissible; (3) refer the case back to the General Court of the European Union for a decision on the merits of the action; (4) reserve the costs. 1 – Original language: French. 2 – For a case in which the Court has proceeded in this fashion, see the judgment in Joined Cases C‑463/10 P and C‑475/10 P Deutsche Post and Germany v Commission [2011] ECR I‑9639, paragraphs 77 to 82. 3 – See, inter alia, Case C‑362/06 P Sahlstedt and Others v Commission [2009] ECR I‑2903, paragraph 22. 4 – Emphasis added. 5 – Article 289(3) TFEU provides ‘[l]egal acts adopted by legislative procedure shall constitute legislative acts’. 6 – Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council, at present pending before the Court. 7 – Opinion delivered by Advocate General Kokott on 17 January 2013 in the appeal lodged against the order in Inuit Tapiriit Kanatami and Others v Parliament and Council. 8 – Article 291(1) TFEU provides ‘Member States shall adopt all measures of national law necessary to implement legally binding Union acts’. Article 291(2) TFEU provides that ‘[w]here uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases, … on the Council’. In any event, Article 291(4) TFEU requires ‘[t]he word “implementing” [to be] inserted in the title of implementing acts’. 9 – Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677. 10 – In paragraph 41 of that judgment, the Court states: ‘Thus it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.’ 11 – Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 64. 12 – This is the interpretation of the General Court. See, in this regard, Case T‑262/10 Microban International and Microban (Europe) v Commission [2011] ECR II‑7697, paragraph 32. This is also the view supported by Advocate General Kokott in Inuit Tapiriit Kanatami and Others v Parliament and Council, point 69, and in Case C‑274/12 P Telefónica v Commission point 59, at present pending before the Court. In legal literature, see, inter alia, Albors-Llorens, A., ‘Sealing the fate of private parties in annulment proceedings? The General Court and the new standing test in Article 263(4) TFEU’, The Cambridge Law Journal, 2012, vol. 71, pp. 52 to 55, and Werkmeister, C., Pötters, St., and Traut, J., ‘Regulatory Acts within Article 263(4) TFEU — A dissonant Extension of Locus Standi for Private Applicants’, Cambridge yearbook of European legal studies, vol. 13, 2010-2011, pp. 311 to 332, especially p. 329. 13 – Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraph 47. 14 – For an application of the principle, see, for example, Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] I‑8495, paragraphs 48 and 49. 15 – Judgment of 8 March 2012 in Case T‑221/10 Iberdrola v Commission, paragraph 46. See also the order of 21 March 2012 in Case T‑228/10 Telefónica v Commission, paragraph 42. An appeal against that order is currently pending (Case C‑274/12 P). 16 – Point 40. 17 – Ibidem, point 41. 18 – See the definition of direct concern given by Advocate General Kokott in point 59 of her Opinion in Telefónica v Commission. 19 – See the definition of direct interest in point 40 of the present Opinion. In this connection, see Creus, A., ‘Commentaire des décisions du Tribunal dans les affaires T‑18/10 Inuit et T‑262/10 Microban’, Cahiers de droit européen, 2011, p. 659, especially p. 677, as well as Peers, S., and Costa, M., ‘Judicial review of EU Acts after the Treaty of Lisbon; Order of 6 September 2011, Case T‑18/10 Inuit Tapiriit Kanatami and Others v Commission & Judgment of 25 October 2011, Case T‑262/10 Microban v Commission’, European Constitutional Law Review, 2012, vol. 8, pp. 82 to 104, especially p. 96. 20 – See, inter alia, Case C‑331/09 Commission v Poland [2011] ECR I‑2933, paragraph 54. 21 – See, inter alia, Case C‑304/09 Commission v Italy [2010] ECR I‑13903, paragraph 35. 22 Case C‑188/92 TWD Textilwerke Deggendorf [1994] ECR I‑833. In paragraph 17 of that judgment, the Court held that ‘[i]t follows from the … requirements of legal certainty that it is not possible for a recipient of aid, forming the subject-matter of a Commission decision adopted on the basis of Article 93 of the Treaty, who could have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the third paragraph of Article 173 of the Treaty to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision’. 23 – Commission v Infront WM, paragraph 47 and the case-law cited. 24 – Ibidem, points 21 to 29. 25 – Ibidem, point 25. 26 – See Case C‑80/06 Carp [2007] ECR I‑4473, paragraph 21, and the order in Case C‑503/07 P Saint-Gobain Glass Deutschland v Commission [2008] ECR I‑2217, paragraph 71. 27 – See, inter alia, Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 37. 28 – Case C‑242/00 Germany v Commission, paragraph 28. 29 – Ibidem, paragraph 29. The General Court has recently applied that case-law: ‘the Court rejects the approach essentially advocated by the Commission, which consists, on the basis of a literal reading of Article 19(1), taken in isolation, in maintaining that it takes no decision in the case of a procedure for review of an existing aid leading to acceptance by the Member State of the appropriate measures proposed … As regards the binding legal effects of the contested decision [taken by the Commission on the basis of Article 19(1), in fine, of Regulation No 659/1999], suffice it to observe that, under [that article], a Member State which, at the time of the publication provided for in Article 26(1) of Regulation No 659/1999, has necessarily accepted the appropriate measures is “bound … to implement” those measures’ (Case T‑354/05 TF1 v Commission [2009] ECR II‑471, paragraphs 68 and 73 and the case-law cited.) 30 – For a similar assessment by the Court concerning an application for protective measures lodged by the French Republic (import quotas), see Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 9. 31 – Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 197, 223. More recently, see Commission v Infront WM, paragraph 70, and Sahlstedt and Others v Commission, paragraph 26. 32 – Sahlstedt and Others v Commission, paragraph 30, emphasis added. See also Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 60. In Case 100/74 CAM v EEC [1975] ECR 1393, paragraph 18, the Court held that the contested act affected ‘a fixed number of traders identified by reason of the individual course of action’ which they had pursued or were regarded as having pursued (emphasis added). 33 – Commission v Infront WM, paragraph 72 and the case-law cited. 34 – Sahlstedt and Others v Commission, paragraph 31 and the case-law cited. Emphasis added. 35 – See point 80 of the present Opinion. 36 – Sahlstedt and Others v Commission, paragraph 30. 37 – See Piraiki-Patraiki and Others v Commission, paragraph 31, and Belgium and Forum 187 v Commission, paragraph 60. 38 – See Belgium and Forum 187 v Commission, paragraphs 61 to 63. 39 – Commission v Infront WM, paragraph 72 and the case-law cited. 40 – See the earlier arguments on direct concern in the context of the examination of the new Article 263 TFEU, fourth paragraph, in fine. 41 – Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 21. 42 – See, inter alia, Case C‑17/07 P Neirinck v Commission, paragraph 45, and Deutsche Post and Germany v Commission, paragraph 37. 43 – Order in Case 206/89 R S. v Commission [1989] ECR 2841, paragraph 8. 44 – Order in Case 108/86 d.M. v Council and ESC [1987] ECR 3933, paragraph 10. 45 – Recital 72 to the contested decision. 46 – See points 65 to 70 of the present Opinion. 47 – See, in this regard, point 86 of the Opinion of Advocate General Kokott in Telefónica v Commission.