Order — ECLI:EU:C:2004:54
Date: 2004-01-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General
Procedure: Action for annulment - inadmissible
Origin: Netherlands

Summary of the Order 
1. Actions for annulment — Actionable measures — Meaning — Measures producing 
binding legal effects — Decision declaring a system of aid notified compatible with the 
common market — No distinct change in the situation of a Member State which 
requested an assessment of the legality of that system of aid — Not possible to bring 
an action for annulment against such a decision 
(Arts 87 EC, 88 EC and 230 EC) 
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SUMMARY — CASE C-164/02 
2. Actions for annulment — Actionable measures — Grounds of a decision — 
Excluded 
(Art. 230 EC) 
1. Only a measure whose legal effects are 
binding on the applicant and are 
capable of affecting his interests by 
bringing about a distinct change in his 
legal position is an act or decision 
which may be the subject of an action 
for annulment under Article 230 EC. 
To determine whether an act or 
decision produces such effects, it is 
necessary to look to its substance. 
A decision, adopted under Article 87(1) 
EC and under Article 87(3)(c) EC 
declaring a system of aid notified to 
be compatible with the common mar­
ket, in so far as in its notification of the 
system the authorities of that Member 
State requested the Commission to 
assess the legality of that measure in 
the light of Articles 87 EC and 88 EC, 
does not have such an effect, because it 
does not bring about a distinct change 
in the legal position of the Member 
State. 
(see paras 18-20) 
2. Regardless of the grounds on which a 
Commission decision is based, only the 
operative part thereof is capable of 
producing legal effects and, as a con­
sequence, of adversely affecting a per­
son's interests. By contrast, the assess­
ments made in the recitals to a decision 
are not in themselves capable of form­
ing the subject of an application for 
annulment. They can be subject to 
judicial review by the Community 
judicature only to the extent that, as 
grounds of an act adversely affecting a 
person's interests, they constitute the 
essential basis for the operative part of 
that act. 
(see para. 21) 
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