Opinion of the Advocate General — ECLI:EU:C:2005:106
Date: 2005-02-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - inadmissible;Appeal - successful
Origin: Germany

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding aid to be compatible with the common market without initiating the formal investigation procedure – Action by an association formed for the protection of the collective interests of individuals and including certain direct competitors of the beneficiaries of that aid – Whether admissible (Arts 88( 2) and (3) EC and 230, fourth para., EC) 2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision authorising an aid scheme as modified following an initial decision finding that it was incompatible with the common market at the end of a formal investigation procedure – Action by an association which played an active role in that procedure but which went no further than the exercise of the procedural rights granted to parties concerned by Article 88(2) EC – Whether admissible (Art. 88( 2) and ( 3) EC) 1. Under the fourth paragraph of Article 230 EC, a natural or legal person may institute proceedings against a decision addressed to another person only if it is of direct and individual concern to the former. 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 those factors distinguishes them individually just as in the case of the person addressed. In the case of a Commission decision on State aid, in the context of the procedure for reviewing State aid provided for in Article 88 EC, it is only in connection with the examination under Article 88(2) EC, which is designed to enable the Commission to be fully informed of all the facts of the case, that the Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments. Where, without initiating the formal review procedure under Article 88(2) EC, the Commission finds, on the basis of Article 88(3) EC, that aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision before the Community judicature. For those reasons, the Court declares to be admissible an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC where he seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision. The parties concerned, within the meaning of Article 88(2) EC, who are thus entitled under the fourth paragraph of Article 230 EC to institute proceedings for annulment are those persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations. On the other hand, if the applicant calls in question the merits of the decision appraising the aid as such, the mere fact that it may be regarded as concerned within the meaning of Article 88(2) EC cannot suffice to render the action admissible. It must then demonstrate that it has a particular status, namely that that decision affects it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and by virtue of those factors distinguishes it individually just as in the case of the person addressed. That applies in particular where the applicant’s market position is substantially affected by the aid to which the decision at issue relates. An association set up to promote the collective interests of a category of persons can therefore only be regarded as being individually concerned to the extent to which the position of its members in the market is substantially affected by the aid scheme covered by the contested decision. That is not the case, even if certain members of such an association are economic operators who may be regarded as direct competitors of beneficiaries of the aid provided for and, therefore, their competitive position is necessarily affected by the contested decision, where it appears to be accepted that all operators in the relevant sector in the European Union may be regarded as competitors of the beneficiaries of that aid. (see paras 32-37, 70-72) 2. The fact that an association participated actively in the formal review procedure of an aid scheme and in the informal discussions concerning implementation of the decision, adopted at the end of that procedure, that the aid was incompatible with the common market, doing so in many different active ways and producing scientific reports in support of its case, that it had an important role as interlocutor during the procedure, that the contested decision authorising that aid scheme after modifications but without initiating a new formal review procedure is directly connected with the initial decision and that the Commission itself conceded that that association influenced the decision-making process and was a useful source of information, cannot be a basis for regarding it as a negotiator individually concerned by the contested decision, since its role in the formal review procedure went no further than the exercise of the procedural rights granted to parties concerned by Article 88(2) EC. That association does not therefore have standing to attack the contested decision adopted by the Commission under Article 88(3) EC, and which was not addressed to it. (see paras 55-58)