Opinion of the Advocate General — ECLI:EU:C:2018:120
Date: 2018-02-27
Language of the case: German
Subject matter: State aids;Competition;Transport
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary — Judgment of the Court (Grand Chamber), 25 July 2018 1. State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Decision not contested before the EU judicature by the recipient of the aid informed in good time — Action brought by the recipient before a national court against the national measures implementing the Commission decision — Not possible for the recipient to rely on the invalidity of that decision before national courts (Arts 107 TFEU and 263, fourth and sixth paras, TFEU) 2. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding aid incompatible with the internal market and ordering its recovery — Direct and individual concern of the recipients of that aid (Arts 107 TFEU and 263, fourth para., TFEU) 4, TFEU) 3. Questions referred for a preliminary ruling — Admissibility — Limits — Hypothetical questions — Questions concerning the validity of a Commission decision finding aid incompatible with the internal market and ordering its recovery — Decision not having been validly challenged before the national court — Inadmissibility (Art. 267 TFEU) 1. The case in the main proceedings concerns, in essence, the validity of the contested decision in that it classified the cap on the EEG-surcharge as ‘State aid’ within the meaning of Article 107 TFEU. The Commission, relying on the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), submits that the request for a preliminary ruling is inadmissible on the ground that the applicants in the main proceedings did not bring an action for annulment against the contested decision before the General Court of the European Union. It should be noted that, in paragraph 17 of that judgment, delivered in a case bearing similarities to the case in the main proceedings, the Court in essence held that, in particular for reasons of legal certainty, it is not possible for a recipient of State aid — which was the subject of a Commission decision that was directly addressed solely to the Member State from which that recipient comes — who could undoubtedly have challenged that decision on the basis of Article 263 TFEU and who allowed the mandatory period provided for in the sixth paragraph of that provision to lapse, effectively to call into question the legality of that decision before the national courts, in an action brought against the national measures implementing that decision (see, also, judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 28). However, the exception referred to in paragraph 14 above is also justified where the recipient of the aid relies, before a national court, on the invalidity of the Commission decision before the expiry of the time limit for challenging that decision, provided for in the sixth paragraph of Article 263 TFEU. Thus, the possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in a measure of the European Union, which constitutes the basis of a national decision taken concerning him, presupposes either that he has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that he has not done so, as a result of not having the right to bring such an action (see, to that effect, judgments of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 46 and 48; of 17 February 2011, Bolton Alimentari, C‑494/09, EU:C:2011:87, paragraphs 22 and 23; and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 67 and the case-law cited). (see paras 12-14, 16, 17) 2. It is not disputed that the applicants in the main proceedings benefited from individual decisions granted by BAFA enabling them to have the EEG-surcharge capped. The Commission specifically classified that cap as ‘aid incompatible with the internal market’ and ordered its recovery in accordance with the provisions in the contested decision. In that regard, it follows from the fourth paragraph of Article 263 TFEU that a natural or legal person may institute proceedings against a decision addressed to another only if the decision is of direct and individual concern to that natural or legal person. In the present case, Article 10 of the contested decision expressly provides that the Federal Republic of Germany is the addressee of that decision. However, it should be noted, first, that Articles 6 and 7 of the contested decision instruct the Federal Republic of Germany to recover the incompatible aid granted, as a result of which the German authorities were required, without having any margin of discretion, to recover that aid in accordance with the procedures set out in Annex III to the contested decision. Consequently, the applicants in the main proceedings must be regarded as directly concerned by that decision (see, to that effect, judgments of 19 October 2000, Italy and Sardegna Lines v Commission, C‑15/98 and C‑105/99, EU:C:2000:570, paragraph 36; of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraphs 48 and 49; and of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraphs 60 and 61). Secondly, it should be recalled that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 29 April 2004, Italy v Commission, C‑298/00 P, EU:C:2004:240, paragraph 36 and the case-law cited). Thus, the actual beneficiaries of individual aid, granted under an aid scheme, of which the Commission has ordered the recovery are, accordingly, individually concerned within the meaning of the fourth paragraph of Article 263 TFEU. It follows from the foregoing that the applicants in the main proceedings undoubtedly had standing to seek the annulment of the contested decision. (see paras 27-31, 33-35, 37) 3. See the text of the decision. (see paras 43, 44)