Opinion of the Advocate General — ECLI:EU:C:2013:335
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 A – Concerning State aid N 642/2009 119. In the light of the foregoing considerations, I consider, like the General Court, that the appellants have no standing to bring an action for annulment against the contested decision in that it relates to State aid N 642/2009. 120. Accordingly, I propose that the Court should consider the third plea as, in part, manifestly inadmissible and, in part, manifestly unfounded. B – Concerning State aid E 2/2005 121. Primarily, in contrast to State aid N 642/2009, I consider that the appellants have an interest in bringing an action for annulment. 122. Secondly, I consider that the General Court erred in law by failing to examine the applicability of the last part of the fourth paragraph of Article 263 TFEU to the present case. Accordingly, I propose that the Court allow the appeal. 123. In that regard, under the first paragraph of Article 61 of the Statute of the Court, 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. 124. In this case, I consider that the Court has the information necessary to give final judgment on the issue of admissibility. 125. I note in that regard that the conditions laid down for bringing an action for annulment on that basis — that it must be concerned with a regulatory act, which is of direct concern to the appellants and does not entail implementing measures — are fulfilled. 126. If the Court does not concur with my view, I consider that the General Court erred in law in its assessment of the condition relating to individual concern. I consider that condition to have been satisfied by the appellants. Accordingly, the appellants’ action should have been declared admissible by the General Court and their appeal should be allowed, since the second ground of appeal is well founded. 127. However, I consider that the Court is not in a position to rule on the merits of the actions brought by the appellants, in so far as the assessments made by the General Court relate exclusively to the admissibility of the action, without considering the merits. 128. The case must therefore be referred back to the General Court for a decision on the appellants’ pleas that the contested decision should be annulled in so far as it relates to State aid E 2/2005. VI – Costs 129. Since the case is to be referred back to the General Court, the costs relating to the present appeal proceedings must be reserved. VII – Conclusion 130. In the light of the foregoing considerations, I propose that the Court should: (1) dismiss the appeal in that it relates to the findings of the order of the General Court of the European Union of 16 December 2011 in Case T‑203/10 Stichting Woonpunt and Others v Commission which deal with the part of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid No E 2/2005 and N 642/2009 — The Netherlands — Existing and special project aid to housing corporations relating to State aid N 642/2009; (2) set aside the order of the General Court of 16 December 2011 in Stichting Woonpunt and Others v Commission in so far as it concerns the part of Decision C(2009) 9963 final relating to State aid E 2/2005; (3) declare the appeal admissible in that it concerns the part of Decision C(2009) 9963 final relating to State aid E 2/2005; (4) refer the case back to the General Court of the European Union for a decision on the merits of the action in so far as it concerns the part of contested Decision C(2009) 9963 final relating to State aid E 2/2005; (5) reserve the decision as to costs. 2 – Original language: French. 3 – For a case in which the Court has acted in this way, see Joined Cases C‑463/10 P and C‑475/10 P Deutsche Post v Commission [2011] ECR I‑9639, paragraphs 77 to 82. 4 – Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 21. 5 – See, inter alia, judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, paragraph 45, and Deutsche Post and Germany v Commission, paragraph 37. 6 – Order of 31 July 1989 in Case 206/89 R S v Commission [1989] ECR 2841, paragraph 8. 7 – Order of 7 October 1987 in Case 108/86 d.M. v Council and ESC [1987] ECR 3933, paragraph 10. 8 – See, inter alia, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 29 and the case-law cited. 9 – Paragraph 72 of the contested decision. 10 – .Germany v Commission, paragraph 28. 11 – Ibid., paragraph 29. The General Court 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 [adopted by the Commission on the basis of the last part of Article 19(1) 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. 12 – See, in that regard, point 86 of the Opinion of Advocate General Kokott in Case C‑274/12 P Telefónica v Commission, pending before the Court. 13 – See, inter alia, Case C‑362/06 P Sahlstedt and Others v Commission [2009] ECR I‑2903, paragraph 22. 14 – Emphasis added. 15 – According to Article 289(3) TFEU: ‘[l]egal acts adopted by legislative procedure shall constitute legislative acts’. 16 – Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] ECR. 17 – Opinion delivered by Advocate General Kokott on 17 January 2013 in the appeal brought against the order of the General Court of 6 September 2001 in Inuit Tapiriit Kanatami and Others v Parliament and Council. 18 – According to Article 291(1) TFEU: ‘Member States shall adopt all measures of national law necessary to implement legally binding Union acts’. Article 291(2) provides, for its part, that: ‘[w]here uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in … specific cases … on the Council’. In any event, Article 291(4) requires that ‘[t]he word “implementing” … be inserted in the title of implementing acts’. 19 – Case C‑50/00 P [2002] ECR I‑6677. 20 – According to the Court: ‘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’ (paragraph 41). 21 – Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 64. 22 – Such is the interpretation of the General Court. See, in that regard, Case T‑262/10 Microban International and Microban (Europe) v Commission [2011] ECR I‑7697, paragraph 32. That is also the point of view put forward 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. In the legal literature, see, inter alia, Albors-Llorens, Alb., ‘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. 52-55; Werkmeister, Chr., 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), p. 311-332 in particular p. 329. 23 – Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraph 47. 24 – For an application of the principle, see, for example, Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraphs 48 and 49. 25 – Case T‑221/10 Iberdrola v Commission [2012] ECR, paragraph 46. See also order of 21 March 2012 in Case T‑228/10 Telefónica v Commission [2012] ECR, paragraph 42. An appeal is presently pending against that order (Case C‑274/12 P). 26 – Paragraph 40. 27 – Ibid., paragraph 41. 28 – See the definition of direct concern given by Advocate General Kokott in point 59 of her Opinion in Telefónica v Commission. 29 – See the definition of direct interest given in point 67 of this Opinion. See, in that regard, 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, in particular p. 677; 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: 82-104, in particular p. 96. 30 – See, inter alia, Case C‑331/09 Commission v Poland [2011] ECR I‑2933, paragraph 54. 31 – See, inter alia, Case C‑304/09 Commission v Italy [2010] ECR I‑13903, paragraph 35. 32 – Case C‑188/92 TWD Textilwerke Deggendorf [1994] ECR I‑833. In paragraph 17 of that judgment, the Court of Justice held that ʽ[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’. 33 – .Commission v Infront WM, paragraph 47 and the case-law cited. 34 – Ibid., points 21 to 29. 35 – Ibid., point 25. 36 – See Case C‑80/06 Carp [2007] ECR I‑4473, paragraph 21, and order in Case C‑503/07 P Saint-Gobain Glass Deutschland v Commission [2008] ECR I‑2217, paragraph 71. 37 – See, inter alia, Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 37. 38 – For a similar assessment by the Court concerning an application for protective measures brought by the French Republic (import quota), see Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 9. 39 – Case 25/62 Plaumann v Commission [1963] ECR 95, in particular p. 107. More recently, see Commission v Infront WM, paragraph 70, and Sahlstedt and Others v Commission, paragraph 26. 40 – .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 had held that the contested measure 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). 41 – .Commission v Infront WM, paragraph 72 and the case-law cited. 42 – Ibid., paragraph 31 and the case-law cited. Emphasis added. 43 – See point 103. 44 – .Sahlstedt and Others v Commission, paragraph 30. 45 – See paragraph 31 of Piraiki-Patraiki and Others v Commission and paragraph 60 of Belgium and Forum 187 v Commission. 46 – See Belgium and Forum 187 v Commission, paragraphs 61 to 63. 47 – .Commission v Infront WM, paragraph 72 and the case-law cited. 48 – See considerations above concerning direct concern in the context of the examination of the last part of the fourth paragraph of the new Article 263 TFEU.