Keywords

Summary



Keywords

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without opening the formal investigation procedure – Action brought by the parties concerned within the meaning of Article 88(2) EC – Admissibility – Conditions

(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 finding State aid compatible with the common market without opening the formal investigation procedure – Action by a competing undertaking which fails to show that its position on the market is significantly affected – Inadmissibility

(Arts 88(2) and (3) EC and 230, fourth para., EC)

Summary

1. Under the fourth paragraph of Article 230 EC, any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

In the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 88(2) EC. It is only in connection with the latter examination, which is designed to enable the Commission to be fully informed of all the facts of the case, that the EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments.

Where, without initiating the formal investigation 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 Courts. For those reasons, an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC is declared to be admissible where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision.

Such parties concerned for the purposes of Article 88(2) EC are any persons, undertakings or associations whose interests may be affected by the granting of aid, that is, in particular competing undertakings and trade associations.

(see paras 64, 69-71)

2. 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 by the decision.

If the applicant calls into 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 for the action to be declared admissible. It must then demonstrate that it has a particular status; in particular, that its market position is substantially affected by the aid to which the decision at issue relates. In that regard, it should be noted that an undertaking cannot rely solely on its status as a competitor of the undertaking which benefits from the measure in question; it must also demonstrate the magnitude of the prejudice to its market position.

(see paras 66, 72, 76-78)