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 initiating the formal review procedure – Actions by parties concerned within the meaning of Article 88(2) EC – Admissibility – Conditions

(Arts 88(2) EC and 230, fourth para., EC; Council Regulation No 659/1999, Arts 1(h), 4(3) and 6(1))

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 initiating the formal review procedure – Actions by parties concerned within the meaning of Article 88(2) EC – Identification of the subject-matter of the action – Action to safeguard the procedural rights of parties concerned – Pleas in law that may be relied on

(Arts 88(2) EC and 230(4) EC; Rules of Procedure of the General Court, Art. 44(1)(c); Council Regulation No 659/1999, Arts 1(h), 4(3) and 6(1))

3. State aid – Examination by the Commission – Administrative procedure – Party concerned within the meaning of Article 88(2) EC – Undertaking using the same raw material as the undertaking receiving aid

(Arts 88(2) EC and 230, fourth para., EC; Council Regulation No 659/1999, Art. 1(h))

Summary

1. In the field of State aid, the legality of a Commission decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the European Union judicature the decision not to raise objections.

Accordingly, in an action for annulment, the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a decision not to raise objections.

(see paras 47-48)

2. In the field of State aid, an applicant who contests a Commission decision not to initiate the formal investigation procedure must, in accordance with Article 44(1)(c) of the Rules of Procedure of the General Court, define the subject-matter of its action in the application initiating proceedings. That requirement is satisfied to the requisite legal standard where the applicant identifies the decision which he seeks to have annulled. It matters little whether the application initiating proceedings states that it is seeking the annulment of ‘a decision not to raise objections’ – the term used in Article 4(3) of Regulation No 659/1999 – or of a decision not to initiate the formal investigation procedure, since the Commission takes a position on both aspects of the question by means of a single decision.

When an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, have the consequence of changing the subject-matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence that must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999.

(see paras 51-52, 59)

3. Under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of persons. As a consequence, that provision does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid, but which requires the same raw material for its production process, can be categorised as an interested party, provided that that undertaking demonstrates that its interests could be adversely affected by the grant of the aid. For that purpose, it is necessary for that undertaking to establish, to the requisite legal standard, that the aid is likely to have a specific effect on its situation.

(see paras 63-65)