61984C0169
OPINION OF MR ADVOCATE GENERAL
VERLOREN VAN THEMAAT
delivered on 16 October 1985 (
*1
)
Mr President,
Members of the Court,
I — Introduction
In this case, the Court is confronted for the first time with the important question, debated in legal literature and contested in these proceedings, of the extent to which the ‘parties concerned’ within the meaning of Article 93 (2) of the EEC Treaty are entitled to challenge a Commission decision terminating a procedure, as referred to in that provision, on the ground that the Commission's initial objections to the aid in question have been met to its satisfaction. The scope of the question, couched in those terms, is of course fairly broad. The answer to be given may also have important consequences with regard to supervision aimed at ensuring compliance with Article 92 of the EEC Treaty, which transcend its significance for this particular case. However, the question also exhibits certain specific features which may differ from one case to another. The difficulties which in this case complicate the answer to the question concerning the admissibility of the application submitted call in any event for an exact understanding of the main facts of the case.
I will therefore begin by incorporating in my Opinion a summary of the facts of the case and of the course of the procedure taken from the Report for the Hearing (part II of this Opinion). That summary of the most important facts is in my view also sufficient to permit separate consideration of the doubts which were expressed by the Commission concerning the admissibility of the application and which induced the Court to decide of its own motion to examine the question of admissibility separately.
Next, I shall express my views on the question in general, having regard to the arguments put forward by the parties during the written and oral procedure (part III of this Opinion). I shall then deal with certain specific aspects of this case which have been referred to by the Commission (part IV of this Opinion).
Finally, I shall summarize my findings and draw my conclusions (part V of this Opinion).
II — Facts and course of the procedure
1.
On 1 June 1983 the Syndicat professionnel de l'industrie des engrais azotés [Trade Association of Producers of Nitrate Fertilizers, hereinafter referred to as ‘the Syndicat’], Paris, whose object is to study and defend the general interests of French manufacturers of nitrate fertilizers, including Cofaz, SA and SCGP SA, submitted a complaint to the Commission against the preferential tariff for the supply of natural gas intended for the manufacture of ammonia, which is accorded in the Netherlands to domestic producers of nitrate fertilizers.
The Belgian and French Governments, together with a German undertaking, also raised objections to the preferential tariff applied by the Netherlands.
2.
After considering those complaints and taking note of the observations submitted by the Netherlands Government, the Commission decided on 25 October 1983 to initiate the procedure under Article 93 (2) of the EEC Treaty. It gave notice of that decision in the Official Journal of the European Communities of 1 December 1983 (C 327, p. 3) and invited the parties concerned other than the Member States to submit their comments within three weeks. In that notice the Commission also explained that the aid scheme in question was a system whereby the Netherlands Government granted special rebates through Gasunie [the Gas Board] by means of a two-tier tariff structure which had the effect of reducing the cost of natural gas used as a feedstock for Netherlands producers of ammonia. The Commission considered that that tariff structure constituted a State aid within the meaning of Article 92 (1) of the EEC Treaty and could not benefit from any of the derogations foreseen in Article 92 (3).
The Syndicat availed itself of the possibility offered in the abovementioned notice, again made representations to the Commission in a letter dated 6 January 1984 and in its observations confirmed its complaint of 1 June 1983 and provided further particulars thereof.
3.
At the same time, the Commission, acting on a complaint from the French Government dated 11 July 1983, initiated the procedure under Article 170 of the EEC Treaty and by letter of 4 November 1983 requested the Netherlands Government to submit its observations.
4.
On 13 March 1984 the Commission delivered pursuant to Article 170 of the EEC Treaty a reasoned opinion addressed to the French and Netherlands Governments concerning the preferential tariff for the supply of natural gas to Netherlands producers of nitrate fertilizers. In its reasoned opinion, the Commission found that, by granting through Gasunie a preferential tariff for the supply of natural gas to Netherlands producers of ammonia and of nitrate fertilizers, the Kingdom of the Netherlands had failed to fulfil its obligations under Article 93 of the EEC Treaty. Moreover, the Commission reserved its position with regard to the attitude which it would adopt in connection with the procedure under Article 93 (2) of the EEC Treaty.
5.
Pending the adoption by the Commission of its final decision in the procedure under Article 93, the Syndicat sent a memorandum on 28 March 1984 to the French Members of the Commission. In that memorandum, the Syndicat set out its objections to the system of natural gas tariffs which had in the meantime been amended by Gasunie. The Syndicat pointed out in particular that the second system really amounted to an attempt to maintain, in a different guise, the preferential tariff against which the complaint of 1 June 1983 was directed.
6.
By telex message of 14 April 1984 the Netherlands Government informed the Commission that Gasunie had, with effect from 1 November 1983, abolished the two-tier preferential tariff applied to producers of ammonia and of nitrate fertilizers — that is to say the system which the Syndicat had challenged in its complaint and the second system to which the Syndicat had objected in its memorandum of 28 March 1984 — and had added to its industrial tariff system, with retroactive effect from 1 November 1983, a new tariff known as tariff F for the benefit of the major industrial users in the Netherlands, with the exception of those in the energy section, which applies to any user that:
(i)
consumes at least 600 million cubic metres of gas per year and operates 90% of the time or more;
(ii)
accepts a total or partial interruption of supplies at the discretion of Gasunie and at short notice;
(iii)
accepts supplies of natural gas having different calorific values.
Undertakings which accept those conditions pay a new tariff, known as tariff E, with a discount of HFL 0.05 per cubic metre.
7.
At its meeting on 17 April 1984 the Commission decided to terminate the procedure initiated against the Netherlands Government under Anicie 93 (2) of the EEC Treaty concerning the tariff for natural gas supplied to Netherlands producers of ammonia and of nitrate fertilizers on the ground that the new tariff, tariff F, was compatible with the Common Market. The Commission notified the Netherlands Government of its decision by letter of 18 May 1984. It also informed the Syndicat of its decision by letter of 24 April 1984. In that letter, the Commission stated that it had come to the conclusion that the new tariff which, in its view, formed part of the general tariff structure for users in the Netherlands and which did not discriminate between sectors, could in no way be regarded as a State aid. Large savings were made by Gasunie on account of the long operating hours and the conditions on which major industrial users may be supplied. Since the present level of charges under tariff F did not cover the total value of the savings which Gasunie made on supplies by means of those contracts, tariff F was justified in economic and commercial terms by comparison with the prices charged to other large-scale users.
8.
After considering the Commission's letter, the Syndicat replied on 22 May 1984 setting out its objections to the conclusions drawn by the Commission and requesting further clarification. By letters of 26 and 27 June 1984, the Commission provided further particulars and refuted the Syndicat's objections.
9.
Course of the procedure
On 2 July 1984 the applicants lodged an application in which they claim that the Court should:
(a)
declare the decision of the Commission of the European Communities notified to the applicants by letter of 24 April 1984 void, inasmuch as it constitutes an infringement of Articles 92 and 93 (2) of the EEC Treaty;
(b)
order the Commission of the European Communities to pay the costs, evidence of which will be furnished in due course.
In its defence, lodged on 9 August 1984, the Commission contends that the Court should:
(i)
declare the application inadmissible;
(ii)
in the alternative, declare the application unfounded;
(iii)
order the applicants to pay the costs.
The Commission takes the view that its decision to terminate the procedure under Article 93 (2) of the EEC Treaty is not of direct and individual concern to the applicants, with the result that the requirement prescribed by the second paragraph of Article 173 of the EEC Treaty, which any natural or legal person must fulfil in order to be able to bring an action for a declaration of invalidity, has not been satisfied.
The applicants however consider that the contested decision is of direct and individual concern to them.
Under Article 92 (2) of the Rules of Procedure, the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure concerning the objection of inadmissibility without any preparatory enquiry.
III — General question of admissibility of applications submitted by the parties concerned against termination of proceedings under Article 93 (2) of the EEC Treaty
1. The Commission's position
1.1. Decision not of individual concern to the applicants
The Commission, which does not in fact deny that the conduct complained of constitutes a decision which may be challenged by proceedings under Article 173 of the EEC Treaty, considers in the first place with regard to the admissibility of the present application that, according to Article 189, the decision concerns in principle only those to whom it is addressed and that no other person may institute proceedings. The possibility which the second paragraph of Article 173 makes available to third parties is therefore not so much an exception in favour of persons other than those to whom a decision is addressed as the assimilation of certain third parties to the persons to whom the decision is expressly addressed. Such assimilation must be interpreted restrictively. The mere fact that the person concerned is ‘injured’ by a decision is insufficient in that regard.
(a)
According to the Commission, the Court has consistently held (see the judgment of 15 July 1963 in Case 25/62 Plaumann v Commission [1963] ECR 95), that persons other than those to whom a decision is addressed must point to certain attributes which are peculiar to them, which differentiate them from all other persons and which therefore distinguish them individually as in the case of the addressee. As far as the applicants are concerned, that is by no means apparent from the fact that they were treated in a discriminatory manner as a result of the tariff applied by Gasunie before the introduction of the tariff system at issue in these proceedings. Nor can the fact of being ammonia producers distinguish the applicants from all other persons, since tariff F no longer applies exclusively to ammonia producers.
(b)
In any event, the Commission takes the view that, even if they were actually and manifestly discriminated against, undertakings placed at a disadvantage by the grant of aid to third parties are not adversely affected as regards their rights in relation to the Commission if the latter has wrongly concluded that no aid is involved. Articles 92 and 93 do not confer a right on individuals to compel the Commission to take action. In connection with the application of those articles, individuals have merely a procedural right, namely the right to be notified and to submit their comments before the Commission adopts a decision finding that there is no aid incompatible with the common market. If, however, the Commission decides that no aid is being granted or that the aid granted is compatible with the common market, that does not affect the legal position of the individuals concerned, whether they are the recipients of the aid or competitors of those recipients.
(c)
The Commission considers that the involvement of the parties in the initiation and the course of the procedure under Article 93 (2) does not distinguish them to a sufficient extent to enable them to be assimilated to an addressee of a decision, as referred to by the Court in the Plaumann judgment. The objective situation created where a decision is of individual concern cannot arise from the mere fact that the applicants intervened on their own initiative and for their own particular reasons in a given stage of the administrative procedure. The procedure under Article 93 (2) was initiated by the Commission and the sole purpose of the contacts with the applicants was to enable the Commission to obtain further information. The fact that the applicants were notified of the contested decision must be viewed in the same perspective.
(d)
According to the Commission, the applicants' position during the administrative procedure cannot be compared with that contemplated by Article 3 (2) of Regulation No 17 of the Council of 6 February 1962 (Official Journal, English Special Edition 1959-62, p. 87). Even if the applicants had a right to request the Commission to bring to an end the infringement consisting in the application of a two-tier preferential tariff in favour of Netherlands ammonia producers, which is by no means certain, that would not in itself demonstrate that they had an interest in challenging the decision of the Commission which considers that the level of tariff F does not exhibit any of the features of a State aid.
(e)
According to the Commission, the applicants are confusing two concepts: in the first place the compatibility or incompatibility of an aid with the common market, within the meaning of Article 92 of the EEC Treaty, which is exclusively a matter for the Commission subject to review by the Court; and, secondly, the illegality of aid which has not been notified contrary to Article 93 (3). Since the Court has recognized the direct effect of Article 93 (3), inasmuch as it establishes procedural criteria which the national courts can apply (see the judgments of 19 June 1973 in Case 77/72 Capolongo v Maya [1973] ECR 611, and of 11 December 1973 in Case 120/73 Lorenz v Germany [1973] ECR 1471) and confers rights on individuals which the national courts must protect, it cannot be argued that in those circumstances an undertaking which has been adversely affected has no redress whatsoever.
(f)
Finally, the Commission refers to the judgment of the Court of 17 September 1980 in Case 730/79 (Philip Morris v Commission [1980] ECR 2671) and infers that, as far as this case is concerned, the contested decision is not of individual concern to the applicants. Although a decision addressed to a Member State which declares an aid intended for a specified undertaking to be incompatible with the common market is evidently of individual concern to that undertaking, the applicants' position in these proceedings cannot be compared with that of the undertaking involved in Case 730/79.
(g)
At the hearing, the Commission has amplified its position as set out in the rejoinder and stated that the fact that the applicants had submitted a complaint against the aid in the form originally granted by the Netherlands is not sufficient to distinguish them individually. Moreover, the fact that the complaint induced the Commission to initiate the procedure under Article 93 (2) of the EEC Treaty is, in the Commission's view, insufficient in that regard. Unlike the rules for the application of Articles 85 and 86 and the regulations implementing the GATT Codes on dumping and foreign aid, neither Articles 92 to 94 nor any provision implementing those articles confers any specific status on applicants. It is clear from the judgments in Case 26/76 (Metro v Commission [1977] ECR 1875, in particular paragraph 13 of the decision), Case 210/81 (Demo-Studio Schmidt v Commission [1983] ECR 3045), Case 191/82 (Fediol v Commission [1983] ECR 2913), Case 730/79 (Philip Morris v Commission [1980] ECR 2671) and from the judgment of 20 March 1985 in Case 264/82 (Timex Corporation v Council and Commission [1985] ECR 849, paragraph 11 of the decision) that the question whether a measure is of individual (and direct) concern to an applicant in cases of distortion of competition has always been answered by the Court on the basis of the specific procedural rights conferred on applicants by the relevant implementing provisions. In the absence of such implementing provisions the criteria of admissibility laid down by the Court in the Plaumann judgment are applicable. It is clear from paragraph 17 of the judgment of 14 November 1984 in Case 323/82 (Intermills v Commission [1984] ECR 3809) and from paragraph 16 of the judgment of 30 January 1985 in Case 290/83 (Commission v France [1985] ECR 439) that in the Court's view Article 93 (2) of the EEC Treaty merely ensures that the other Member States and all the parties concerned have an opportunity to express their views thereby providing the Commission with all the information which it needs on a case before making its decision. A procedural guarantee of the right to be heard or to put forward arguments during the inquiry conducted under Article 93 (2) is something quite different from a specific individual right of an applicant which was recognized by the Court for instance in paragraph 15 of the Timex judgment, an antidumping case, on the basis of specific provisions of the antidumping regulation concerned. The position adopted by the applicants in their reply, namely that the absence of specific provisions of that kind in the field of internal aid does not prevent their application from being admissible, is, in the light of the abovementioned decisions, suprising to say the least. Finally the Commission finds support for its view that the Court also considers that the absence of implementing provisions based on Article 94 of the Treaty gives rise to legal consequences in paragraph 15 of the judgment of 23 March 1977 in Case 78/76 (Steinike und Weinlig v Germany [1977] ECR 595). It was also emphasized in that judgment, and in the judgment of the same date in Case 74/76 (Iannelli and Volpi v Meroni [1977] ECR 557), that the Commission had a discretion with regard to the application of Article 92, from which the Court inferred that Article 92 did not have direct effect. As a result of that discretion, moreover, the Commission alone is responsible for initiating the procedure under Article 93 (2) of the EEC Treaty and the applicants cannot claim any rights in that regard.
The statement set out in the rejoinder and repeated four times at the hearing to the effect that the Commission by no means rules out the possibility that those who fulfil the conditions of Article 173 of the Treaty, as interpreted by the Court, can institute proceedings could not be substantiated, in response to a question on my part at the hearing, by any concrete or hypothetical examples. The Commission pointed out at the hearing, in reply to another question from the Court, that in circumstances such as those of the present case legal protection could alternatively be provided by the national courts. In addition to the possibility referred to in the pleadings of legal protection under national law in the event of a breach of the duty of notification laid down by Article 93, the Commission mentioned at the hearing the possibility of bringing an action for damages against the Member State concerned. In national proceedings of that kind the national court could of course refer questions to the Court of Justice concerning the interpretation or validity of the decision adopted by the Commission.
At the hearing the Commission has denied that the contested decision was of individual concern to the applicants on the ground that they are not the only producers of nitrate fertilizers in the Community. Moreover, the contested tariff for natural gas does not apply exclusively to producers of nitrate fertilizers but to all large-scale users who accept the conditions for the application of that tariff. Neither their position as applicants nor their position as competitors of the allegedly subsidized Netherlands producers distinguishes them, in the light of the case-law of the Court, to a sufficient extent to render their application admissible.
1.2. Decision not of direct concern to the applicants
(a)
The Commission considers that the question whether the contested decision is of direct concern to the applicants is wholly secondary since the decision is not of individual concern to them. Alternatively, however, the Commission contends that the mere fact that the applicants are undertakings competing with an undertaking in receipt of State aid does not ipso facto entail that the decision granting such aid is of direct concern to them. In support of that view the Commission relies on the judgment of 10 December 1969 in Joined Cases 10 and 18/68 (Eridania v Commission [1969] ECR 459) in which the Court held that only the existence of specific circumstances may enable an individual who claims that a measure affects his position on the market to bring proceedings under Article 173. The Commission maintains that the applicants in this case have failed to demonstrate the existence of any ‘specific circumstances’ which may validly be relied upon.
(b)
The Commission further observes that the competitive position of French producers of nitrate fertilizers is not directly dependent on the tariffs for natural gas charged to Netherlands producers but also depends on a number of other factors, including the price charged by their own natural gas supplier, Gaz de France. Those tariffs are bound up with the general policy pursued in this field by the French Government, for instance as regards sources of supply. The fact that some supplies of natural gas are dearer than others is therefore attributable to the difference in the tariffs charged by Gasunie and Gaz de France, not to any difference in the treatment accorded by the Netherlands Government, acting through Gasunie. Any harm which may be suffered is not the direct result of the application of tariffs which, as the Commission stated in its contested decision, can in no way be regarded as State aid. Consequently, that decision is not of direct concern to the applicants.
(c)
The Commission again challenges the contention that the conditions laid down by the second paragraph of Article 173 are automatically fulfilled as soon as a complaint is submitted. Not only have the applicants failed to furnish proof that they have a legitimate interest in seeking a declaration that the contested decision is void, but they cannot claim any right under Articles 92 and 93 to request the Commission to decide that there exists an infringement of Article 92 either.
At the hearing the Commission further clarified that point by stating that for a decision to be of direct concern to a person a causal connection between the decision and the disadvantages to which it gives rise is insufficient since a causal connection may be indirect. In this case, moreover, the disadvantages complained of are, in the Commission's view, the result not of Gasunie's tariff for natural gas, or of the decision adopted by the Commission in that regard, but of the French tariff for natural gas.
2. The applicants' position
(a)
The applicants maintain in the first place that the Commission cannot dissociate the tariff system which was in force before 1 November 1983 and against which the complaint of 1 June 1983 was directed from the tariff notified to the Commission on 14 April 1984 which entered into force retroactively on 1 November 1983. From the initiation of the procedure until the adoption of the contested decision, the applicants consistently emphasized that it was necessary to assess in the light of the principles embodied in Article 92 the rebate which is granted to certain categories of users of natural gas in the Netherlands and which therefore constitutes a State aid. The tariff system under consideration is really a variant of the system against which the initial complaint was lodged. The communications addressed by the Commission to the applicants show that the contested decision clearly represents the culmination of the procedure initiated under Article 93 (2) in response to their complaint.
(b)
With regard to the more specific question whether the decision is of individual concern to them, the applicants maintain in the first place that they are placed at a serious disadvantage by the favourable competitive position enjoyed by their Netherlands competitors. Another factor which differentiates the applicants from all other persons and therefore distinguishes them individually for the purposes of Article 173 is their involvement in the initiation and course of the procedure under Article 93 (2). The decisive factor in their view is the attitude of the Commission itself which accepted their complaint, consulted them during the inquiry, informed them of the decision terminating the inquiry even before it notified the addressee of the decision, the Netherlands Government, and furthermore replied to their request for information.
(c)
The applicants disagree with the Commission's contention that an undertaking placed at a disadvantage may not request the Commission to give a decision on the legality of an aid adversely affecting it but merely provides information of an infringement. In their view, that undertaking exercises a right similar to that conferred by Article 3 (2) of Regulation No 17 of the Council. That right is derived from the principles of the Treaty and from the Community's competition rules, which must be applied in a uniform manner pursuant to Article 3 (f) of the EEC Treaty. To deny that right to an undertaking adversely affected by the grant of State aid to its competitors, when that right is conferred on an undertaking which has sustained damage as a result of the anticompetitive practices of other undertakings would constitute an unacceptable form of discrimination.
(d)
Finally, the applicants point out in that regard that in the Philip Morris case, cited earlier, which was also concerned with an application by an undertaking for a declaration that a Commission decision concerning aid was void, the Commission did not challenge the admissibility of the application. In their view, a close comparison of the situation in that case with this case does not support the conclusion that the applicants in this case may be denied the opportunity to assert their rights before the Court, when that possibility was not contested in the Philip Morris case.
The applicants maintain that a discriminatory attitude of that kind is inequitable and inconsistent with the proper application of Community law.
(e)
With regard to that interpretation of the criterion ‘of direct... concern’, the applicants refer first to the relevant commentaries in legal literature and then to paragraphs 8 to 11 of the Court's judgment in the Eridania case. On that basis they conclude that the contested decision is of direct concern to them, first because tariff F, in so far as it may be regarded as State aid, ‘favours’ within the meaning of Article 92 Netherlands ammonia producers and thereby distorts competition to the detriment of the applicants and, secondly, because the adverse impact on the applicants' competitive position is a direct result since the aid granted by the Netherlands authorities derives its validity from the Commission's decision. The Commission alone has the power to determine whether aid granted or proposed by a Member State is compatible with Article 92.
(f)
The applicants have amply demonstrated in the complaints and observations submitted to the Commission before and during the course of the procedure under Article 93 (2) that they have suffered actual damage and that there is a causal connection between that damage and the aid granted in the Netherlands. The Commission itself has acknowledged that ‘the adjustment of Gasunie's tariff seems to have brought an end to all discrimination between ammonia producers within the Community’. The applicants treat that as recognition of the fact that the normal conditions of competition were infringed under the tariff system against which they lodged a complaint and that those conditions continue to be infringed in so far as tariff F can in certain respects be regarded as a State aid.
(g)
In reply to the Commission's argument that they obtain their natural gas from Gaz de France, the applicants state that the aid granted to Netherlands ammonia producers automatically affects the competitive position of rival producers. The rebate of HFL 0.05 per cubic metre accorded to Netherlands ammonia producers in respect of consumption totalling 3.3 thousand million cubic metres per year represents an annual transfer of HFL 165 million. The marketing of their products within the Community has an appreciable impact on the applicants' competitive position, even on the assumption that Gaz de France is in no way dependent on Gasunie for its gas supplies or that the applicants have their own natural gas supplies.
(h)
With regard to the applicability of the criteria laid down by the Court in recent judgments, the applicants observe that the Commission considers their application to be inadmissible on the ground that it fails to satisfy the criteria established by the Court 20 years ago in the Plaumann judgment referred to earlier. In its more recent decisions concerning Article 173, the Court has tended to extend its legal protection to natural and legal persons affected by decisions adopted by the Council or the Commission in the exercise of their discretion. The reason for that trend is that the Court has taken account of certain principles which form part of the Community's legal order and on which certain rules of the Treaty are based. Accordingly, in its judgment of 25 October 1977 in Case 26/76 (Metro v Commission [1977] ECR 1875) and that of 11 October 1983 in Case 210/81 (Demo-Studio Schmidt v Commission [1983] ECR 3045), for instance, the Court referred to ‘the interests of the satisfactory administration of justice’. In its judgment of 4 October 1983 in Case 191/82 (Fediol v Commission [1983] ECR 2913), the Court was guided by the spirit of the principles on which Article 164 (according to which the task of the Court is to ensure that in the interpretation and application of the Treaty the law is observed) and Article 173 are based.
(i)
Having regard to those principles, the Court recognized in the first place that those who are entitled under Article 3 (2) of Regulation No 17 of the Council to request the Commission to find that Articles 85 and 86 have been infringed should be able, if their request is not complied with either wholly or in part, to institute proceedings in order to protect their legitimate interests. The Court went on to draw the fundamental conclusion that any person who is in that situation ‘must be considered to be directly and individually concerned, within the meaning of the second paragraph of Article 173, by the contested decision’.
(j)
With regard to the question whether the existence of regulations which accord applicants specific rights during the administrative procedure is a decisive factor for recognition of their right to request the Court to declare void a Commission decision, the applicants consider that the position adopted by the Court in the Metro, Demo-Studio Schmidt and Fediol judgments in relation to the exercise of its power of review and the legal protection of injured undertakings which have submitted a complaint stems not so much from the existence of rules of positive law laid down by the Community legislature as from superior principles of law which find expression in those rules. The absence of a regulation implementing Articles 92 and 93 is attributable to historical factors and not to any intention on the part of the Community legislature to deny natural or legal persons the same rights and the same protection as are enjoyed by undertakings in other sectors.
(k)
If the admissibility of an application lodged by an undertaking as a third party were to depend on the existence of such a regulation, the Court would no longer be able to exercise its power of review properly in cases in which the Commission enjoys a discretion. That would be contrary not only to the EEC Treaty (in particular Article 164 thereof), but also to the position adopted by the Court in its judgment of 22 March 1977 in Case 74/76 (Iannelli and Volpi v Meroni [1977] ECR 557), in which it demonstrated that the finding that ‘an aid may be incompatible with the common market... by means of an appropriate procedure which it is the Commission's responsibility to set in motion ... [is]... subject to review by the Court’.
Moreover, that would have the effect of creating two distinct systems for the prevent and removal of restrictions on competition. Under the system established by Articles 85 and 86, the parties concerned, whether applicants or defendants, may be natural or legal persons. Under the system established by Articles 92 and 93 only the Member States are involved and individuals have virtually no choice but to submit passively to the Commission's ‘objective supervision’.
(1)
At the hearing the applicants made it clear that they did not regard the contested decision as of direct and individual concern to them solely because they were the complainants. The fact that the Commission kept in close contact with the applicants following the submission of their complaint and informed them of its decision even before it was notified in identical terms to the Netherlands Government, the further explanation they were given concerning the decision and the fact that the decision was clearly adopted as a result of their complaint are all factors that distinguish the applicants individually. In support of that view they also relied at the hearing on paragraph 31 of the Court's judgment of 17 January 1985 in Case 11/82 (Piraiki-Patraiki [1985] ECR 207) and on the criteria referred to in the Court's judgment of 23 May 1985 in Case 53/83 (Allied Corporation [1985] ECR 1621).
The applicants consider that the Commission's decision is of direct concern to them on the ground that it came into force directly and its effects were not contingent on a further implementing decision of a Community institution or Member State. Moreover, the interests of the applicants are directly affected by that decision. The Commission recognized this by stating in its letter of 27 April 1984 that, as a result of the adjustment of the natural gas tariff, there was no longer any discrimination between ammonia producers in the Community.
The Commission's contention that it is clear from the case-law cited by it that the Court recognizes complainants as having a right of action only on the basis of implementing provisions to that effect, was disputed at length by the applicants at the hearing. In their view, the judgments cited are based primarily on the Court's concern for the proper administration of justice.
3. Assessment of the question of admissibility in general terms
(a)
In answering the general question formulated at the outset I would observe first of all that, unlike Article 85 (1) of the EEC Treaty, Article 92 (1) does not lay down a directly effective prohibition (without prejudice to the legislative and potential exceptions set out in Article 92 (2) and (3)). According to the case-law of the Court, aid within the meaning of Article 92 falls within the scope of a prohibition having direct effect only where a decision is adopted under Article 93 (2) prohibiting a specific aid or a regulation is adopted under Article 94 prohibiting certain types of aid, or where, and for as long as, a new aid is not reported to the Commission (see the judgments of the Court in Case 70/72 Commission v Germany [1973] ECR 813; Case 77/72 Capolongo v Maya [1973] ECR 611; Case 120/73 Lorenz v Germany [1973] ECR 1471; Case 74/76 Iannelli and Volpi v Meroni [1977] ECR 557; and Case 78/76 Steinike und Weinlig v Germany [1977] ECR 595). It follows that, except in the circumstances indicated, Community law does not afford alternative legal protection in the national courts to undertakings placed at a disadvantage by the grant of aid to their competitors. The possibility of bringing an action for damages before the national court against the State granting the aid, which was mentioned by the Commission at the hearing, is not in my view a wholly satisfactory alternative since that possibility ultimately depends on the conception of maladministration under national law and, moreover, can lead, at best only indirectly, to the revocation of the aid.
(b)
Next, I consider that the primary condition for a declaration under Article 92 (1) to the effect that certain aid is incompatible with the common market is that the aid ‘distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods’. Where competition is distorted in that manner, undertakings which are accorded favourable treatment and their competitors are automatically concerned to the same extent; the disadvantages for the latter are the counterpart of the advantages conferred on the former. There is no reason to hold that competitors are directly or individually concerned to a lesser extent than undertakings in receipt of aid by a favourable or an adverse Commission decision. The applicants have therefore correctly relied upon the Court's judgment in Case 730/79 (Philip Morris [1980] ECR 2671) in support of the contention that their application is admissible.
(c)
That provisional conclusion is supported by the fact that certain types of aid are to a large extent a mirror-image of import duties and charges having equivalent effect in intra-Community trade which are prohibited by Article 12 et seq. Member States can provide undertakings formerly protected by the imposition of charges on imported products with the same degree of protection against competitors from other Member States by the grant of aid. Equivalent legal protection for such competitors is therefore in principle wholly justified.
(d)
In support of their point of view, the applicants can, in my opinion, also rely on Article 164 of the EEC Treaty which makes the unqualified statement that the Court of Justice is to ensure that in the interpretation and application of the Treaty the law is observed. In my view, it is evident from the body of its case-law as a whole that the Court seeks on the basis of that provision, either by declaring direct actions admissible or by means of the procedure under Article 177, to ensure a comprehensive system of proper legal protection. The Commission has rightly pointed out that in the Metro, Demo-Studio Schmidt, Fediol and Timex cases the Court based its decision that the actions brought by interested third parties were admissible in part, and in the last two cases, in the main, on the manner in which the position of those parties had been regulated by the relevant implementing regulations. In my view, however, it does not follow that conversely in the absence of such implementing provisions an action is necessarily inadmissible. The legal position of interested third parties in such cases has in my view been left open by the Court provided that account is taken of the ‘interests of a satisfactory administration of justice and of the proper application of’ the relevant articles of the Treaty. That interpretation is based on the passages leading up to the second subparagraph of paragraph 13 of the decision in the Metro case and paragraph 14 of the decision in the Demo-Studio Schmidt case. Only in the Fediol and Timex judgments, in which the Court also declared the applications admissible, did that conclusion seem to be based exclusively on the contested implementing regulation, No 3017/79. Converse reasoning based on those two judgments alone would, however, lead to a consequence which in my view would be difficult to reconcile with the nature of the Community. Although the Community seeks to establish closer legal relations and, in the light of the case-law of the Court, to provide better legal protection internally than in relation to nonmember countries, undertakings adversely affected as a result of aid granted to competitors in nonmember countries should be afforded greater legal protection than those adversely affected by aid granted to competitors in another Member State. Since the Member States themselves understandably only rarely exercise their right to request the repeal of a decision holding that certain aid granted by another Member State is compatible with the Treaty, the requirement of proper legal protection prescribed by Article 164 of the Treaty is seriously flawed. The need for judicial review of its discretionary policy in applying Article 92, which has also been recognized by the Commission itself in these proceedings, would not, therefore, result in proper legal protection in the case of decisions holding certain aid to be compatible with the Treaty. Earlier I came to the conclusion that it does not seem possible even for the national courts to offer effective legal protection to undertakings placed at a disadvantage. In that respect there is a very considerable difference between this case and, for instance, the Court's decisions concerning the admissibility of actions in agricultural and customs cases, where if no action is possible under Article 173 of the EEC Treaty the parties concerned can always still institute proceedings against national implementing measures before the national courts, in which the legality of Community decisions can also be challenged.
(e)
In its judgment of 10 December 1969 in Joined Cases 10 and 18/68 (Eridania v Commission [1969] ECR 459), on which the Commission also relies, the Court held that the ‘mere fact that a measure may exercise an influence on the competitive relationships existing on the market in question cannot suffice to allow any trader in any competitive relationship whatever with the addressee of the measure to be regarded as directly and individually concerned by that measure. Only the existence of specific circumstances may enable a person subject to Community law and claiming that the measure affects his position on the market to bring proceedings under Article 173’ (paragraph 7 of the decision). It is clear in my view, both from that paragraph and from the care which the Court subsequently took to explain in paragraphs 8 to 14 of the decision why the applicant was in fact unsuccessful in demonstrating the existence of specific circumstances of the kind referred to in paragraph 7, that the Court was unwilling in principle to rule out the possibility that interested third parties might also be able to challenge even the grant of Community aid (as in that case).
(f)
In the end therefore it is necessary to establish what criteria must be satisfied by an undertaking that is adversely affected by the grant of aid to its competitors and by the adoption of a ‘favourable decision’ by the Commission concerning such aid if those measures are to be regarded as of direct and individual concern to that undertaking.
In this case, therefore, I propose that the Court should in the first place confine its general statement of its position to cases in which the Commission has decided in the course of the inquiry procedure under Article 93 (2) that the aid is not or, where appropriate alterations have been made to the original aid, no longer considered in principle to be incompatible with the common market within the meaning of Article 92 (1). In my view the Commission should not enjoy a broader discretion under that provision than it has in connection with the application of Article 85 (1). Accordingly, the Court's review of the legality of measures in this field can in my view be just as effective as under Article 85 (1). Hence the Commission's objection to the effect that the application of Article 92 involves general supervision of the economic and industrial policy of the Member States in the general interests of the common market strikes me as untenable in the light of Article 92 (1). I have already pointed out that the most important criterion for the application of that provision is the actual or potential distortion of competition between undertakings. The question of the extent to which actions by interested third parties challenging decisions holding certain aid to be compatible with the common market by virtue of paragraph (2) and, in particular, paragraph (3) of Article 92 are also to be regarded as admissibile can thus be left open. To avoid any misunderstanding I would merely point out that the differences between Article 92 (2) and (3) on the one hand and Article 85 (3) on the other do not at present strike me as so substantial that in contrast to the latter case any form of legal protection afforded to third parties must be regarded as incompatible with the discretion properly enjoyed by the Commission. However, that question does not arise in this case. Nor does this case touch on the question raised by the Commission of the extent to which an interested third party may bring an action under Article 175 of the EEC Treaty against the Commission for failure to act, where the Commission has not initiated the procedure provided for by Article 93 (2).
Secondly, I consider it important, in the light of the judgments of the Court in the Metro, Demo-Studio Schmidt, Fediol and Timex cases and in the interests of legal certainty for subsidized undertakings, to restrict the admissibility of applications of this kind to interested third parties who have submitted a complaint to the Commission against the aid granted. The question of the extent to which other interested parties who are given notice under Article 93 (2) ‘to submit their comments’ are also entitled to institute proceedings does not arise in this case and need not therefore be answered by the Court.
Thirdly, I would remind the Court that, in my view, on the basis of the principal criterion for the application of Article 92 (1), an undertaking in receipt of aid and an undertaking adversely affected thereby are in principle both to the same degree directly and individually concerned by a decision concerning such aid. However, by analogy to some extent with the case-law of the Court concerning Article 85 (1) (which applies only to restrictions of competition affecting a significant part of the market), I consider it legitimate to restrict the admissibility of actions by competitors to undertakings which have established that a substantial proportion of their sales are in direct competition with a substantial proportion of the sales of undertakings which, according to the application, are favoured by the measure to which the Commission's contested decision relates. It is clear from the complaint lodged by the applicants on 1 June 1983 (Annex 3 to the application) that the share of the French market held by their Netherlands competitors rose from 9% to 21.7% between 1980 and 1982, with the result that a substantial proportion of the applicants' sales on that market were undoubtedly in direct competition with a substantial proportion of their competitors' sales.
IV — Admissibility of the application in this case
On the basis of the criteria which I have suggested, this application must in principle be considered admissible.
However I now propose to ascertain whether any of the specific features of this case which are referred to by the Commission render the application inadmissible.
In the first place, the Commission argued at the hearing that the application was inadmissible specifically on the ground that the Netherlands measure to which its contested decision related was not an aid within the meaning of Article 92. However, since that argument clearly relates to the substance of the case it cannot as such constitute a bar to the admissibility of the application.
Secondly, the Commission maintained that the tariff with which the contested decision was concerned — unlike the tariff which it replaced and against which the complaint was directed — was no longer applicable exclusively to producers of ammonia and nitrate fertilizers. Instead it displayed the characteristics of a tariff for all large-scale users of gas, regardless of the branch of industry in which they operated. According to the applicants, however, the new tariff in practice exposes them to the same adverse consequences. In their view, that is confirmed by the fact that at the hearing the Commission was able to mention only one large-scale user in the Netherlands operating in another branch of industry who also benefited from the tariff. Once again, it will be possible to determine which contention is correct only in the proceedings concerning the substance of the case. In my view, that consideration can in no way affect the question whether the applicants are specifically and individually concerned by the Netherlands measure which is now broader in scope. In so far as that argument tends to support the Commission's first argument (in the sense that the measure is now a measure of general application which no longer favours certain undertakings or certain products), it also concerns the substance of the case and cannot act as a bar to the admissibility of the application.
Finally, in support of its contention that the decision is not of direct concern to the applicants, the Commission further maintained at the hearing that any adverse effect on the applicants was not a direct result of the tariff policy pursued by Gasunie but the result of the different tariff policy pursued by Gaz de France. In my view, that argument is based on a misconception of the system established by Articles 92, 93 and 94. There is no doubt that a Member State can counterbalance distortions of competition resulting from aid granted by another Member State by introducing an aid having the same effect for the benefit of its own undertakings. Moreover, the Treaty does not rule out the possibility that in certain sectors or for certain purposes such as environmental protection or regional development or for the realization of an important project in the interests of the European Community it may be considered desirable to remove either wholly or in part by harmonizing national aid the distortions of competition produced by such aid. The policy of assisting shipyards is the oldest and best-known example of such harmonization. However, the normal solution to the problem of national aid that is incompatible with the common market is, according to the first subparagraph of Article 93 (2), not the harmonization of such aid but the adoption of a decision to the effect that the State concerned must abolish or alter such aid within a prescribed period. Accordingly, the Commission's final argument must be rejected on the ground that it is contrary to the system established by the Treaty.
V — Summary and conclusion
1.
On the basis of my analysis, I have come to the conclusion in the first place that — without there being any need to give a decision concerning other specific situations — the parties concerned within the meaning of Article 93 (2) of the EEC Treaty are in any event entitled to challenge a Commission decision terminating a procedure under that provision on the ground that the Commission's initial objections to the aid in question have been met to its satisfaction, if those parties also satisfy the twofold condition that prior to the commencement of the inquiry in question they submitted a complaint to the Commission, setting out the reasons on which it was based, and that they have produced evidence that a substantial proportion of their sales are in direct competition with a substantial proportion of the sales of undertakings which, according to the application, are favoured by the measure to which the Commission's contested decision relates.
2.
Secondly, I take the view that the applicants in the present case satisfy those criteria of admissibility.
3.
Thirdly, I have come to the conclusion in my analysis that the general and specific arguments on the basis of which the Commission contended during the proceedings that the application was inadmissible must be rejected on the grounds which I have put forward.
4.
Finally, having regard to the findings which I have thus summarized, to the general significance of the question of admissibility in this case and to the expected duration of the proceedings regarding the substance of the case, I cannot advise the Court to deal with the question of admissibility in conjunction with the proceedings on the substance.
5.
I therefore suggest, in conclusion, that the Court should declare by interlocutory decision that the application is admissible and subsequently reopen the proceedings on the substance at the stage at which they are now. The Court can make an order as to costs in its final judgment.
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*1
)	Translated from the Dutch.