Keywords

Summary



Keywords

1. Actions for annulment – Actionable measures – Acts intended to have legal effects – Definition – Conditions

(Art. 263 TFEU)

2. Actions for annulment – Actionable measures – Measures producing binding legal effects – Commission decision enjoining a Member State to provide information in the context of a State aid procedure, taken pursuant to Article 10(3) of Regulation No 659/1999 – Included

(Arts 263, first para., TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 10(2) and (3))

3. Actions for annulment – Actionable measures – Preparatory measures – Not included – Commission decision enjoining a Member State to provide information, taken pursuant to Article 10(3) of Regulation No 659/1999 – Measure producing independent legal effects – Included

(Arts 258 TFEU and 263 TFEU; Council Regulation No 659/1999, Art. 10(3))

4. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision enjoining a Member State to provide information concerning a public undertaking, taken pursuant to Article 10(3) of Regulation No 659/1999 – Action brought by that undertaking – Whether permissible

(Art. 263 TFEU; Council Regulation No 659/1999, Art. 10(3))

Summary

1. In actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, for the purposes of Article 263 TFEU. Moreover, it is open to a Member State to bring an action for annulment of a measure producing binding legal effects without having to demonstrate that it has an interest in bringing proceedings.

When the action for annulment against an act adopted by an institution is brought by a natural or legal person, the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. When an action for annulment is brought by a non-privileged applicant against a measure that was not addressed to it, the requirement that the binding legal effects of the measure challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU.

(see paras 36-38)

2. A Commission decision taken pursuant to Article 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] and requiring a Member State to provide it with information concerning allegedly unlawful aid is designed to produce binding legal effects and therefore constitutes an act open to challenge for the purposes of Article 263 TFEU. Such an injunction falls within the second stage of the procedure established by Article 10 of that regulation in order to allow the Commission to obtain from the Member State concerned the necessary information concerning such aid, that stage being represented by the adoption of a decision within the meaning of Article 288 TFEU by the Commission. By providing that an information injunction should take the form of a decision, the EU legislature intended to confer a binding character on such a measure.

(see paras 41, 43-45)

3. Intermediate measures whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject-matter of an action for annulment. An action for annulment against measures expressing a provisional opinion of the Commission might make it necessary for the Union judicature to arrive at a decision on questions on which the institution concerned has not yet had an opportunity to state its position and would as a result anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. To allow such an action would thus be incompatible with the system of the division of powers between the Commission and the Union judicature and of legal remedies, laid down by the Treaty, and with the requirements of the sound administration of justice and the proper course of the Commission’s administrative procedure as well.

Nor is an intermediate measure capable of forming the subject-matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection. If that latter condition is not satisfied, it will be considered that the intermediate measure produces independent legal effects and must therefore be capable of forming the subject-matter of an action for annulment.

Such is the case with an injunction, addressed by the Commission to a Member State, to provide information on the revenues and costs of a public undertaking in the context of a procedure for finding State aid, pursuant to Article 10(3) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU]. An action brought against the decision terminating the procedure concerning such State aid is not capable of ensuring sufficient legal protection for the applicants given that, first, the illegality vitiating the intermediate measure, namely, the disproportionate nature of the injunction in that it concerns irrelevant information, could not affect the legality of the Commission’s final decision, since that latter decision will not be based on information obtained in response to the said injunction, and, second, refusal by the Member State concerned to comply with such an injunction constitutes a failure to fulfil an obligation under the Treaties within the meaning of Article 258 TFEU, in the context of which non-performance of such an injunction cannot be justified on the basis of its alleged illegality. Consequently, it is in the context of a distinct procedure, namely, that of an action for annulment under Article 263 TFEU, that any challenge to the legality of such an injunction must be made.

(see paras 50-60)

4. In accordance with the fourth paragraph of Article 263 TFEU, 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 that regard, an injunction, addressed by the Commission to a Member State, to provide information on the revenues and costs of a public undertaking in the context of a procedure for finding State aid, pursuant to Article 10(3) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU], directly affects that undertaking inasmuch as, first, as beneficiary of the measure concerned by the information referred to by the act at issue and as holder of that information, it will be obliged to act on the information injunction, and, second, the definitive and exhaustive content of the information requested is apparent from the act at issue itself, without leaving any discretion to the Member State concerned. Such an undertaking is, moreover, individually concerned by such an injunction when the information referred to therein concerns only that undertaking, in the context of a procedure for examining an alleged State aid measure from which it is alleged to have benefited.

(see paras 65, 68-70, 74)