Judgment — ECLI:EU:T:2008:102
Date: 2008-04-10
Language of the case: Dutch
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Use of State resources;Applications by Member States or institutions;Selective nature of the measure;Aid for environmental purposes
Procedure: Action for annulment - successful
Origin: Netherlands

Summary of the Judgment 1. Actions for annulment – Actions brought by Member States (Arts 88 EC and 230, second para., EC) 2. State aid – Meaning (Art. 87(1) EC) 3. State aid – Meaning – Selective nature of the measure (Arts 6 EC and 87(1) EC) 1. Article 230 EC draws a clear distinction between the right of Community institutions and Member States to bring an action for annulment and that of legal persons and individuals, in that the second paragraph of Article 230 EC gives all Member States the right to contest the legality of decisions of the Commission by means of an action for annulment, without having to establish any legal interest in bringing proceedings. However, in order for an act of the Commission to be the subject of such an action, it must be intended to have legal effects. A decision of the Commission finding that a measure constitutes State aid, thus enabling it to examine the compatibility of the measure in question with the common market, has such legal effects and therefore constitutes, for a Member State, an actionable measure. (see paras 37, 41-42) 2. In the context of a scheme which lays down for certain undertakings a binding emission standard for nitrogen oxides and which authorises those undertakings to trade the emission allowances deriving indirectly from that standard with each other, the authorisation given by a Member State to trade those allowances, which thus confers on them the character of intangible assets which may be freely sold, whereas that Member State could have sold them or put them up for auction, constitutes an advantage granted to those undertakings through State resources. (see paras 70, 74-75, 78) 3. A State measure which establishes an emission trading scheme for nitrogen oxides and which permits all large industrial facilities on which it imposes an emission ceiling to benefit from an advantage consisting in the possibility of selling those emission allowances – the criterion for application of the measure being an objective one, without any geographic or sectoral connotation – and which furthermore, by targeting undertakings which are the biggest polluters, is in conformity with the goal of the measure, that is the protection of the environment, and with the internal logic of the system, there being ecological considerations which justify distinguishing undertakings emitting large quantities of nitrogen oxides from other undertakings which are therefore not in the same legal and factual situation, does not constitute a State aid. (see paras 88, 90, 97-99)