Case T-114/00

Aktionsgemeinschaft Recht und Eigentum eV

v

Commission of the European Communities

‛State aid — Scheme for the acquisition of agricultural and forestry land in the former German Democratic Republic — Failure to initiate the formal review procedure provided for in Article 88(2) EC — System of aid — Action for annulment — Association — Admissibility’

Judgment of the Court of First Instance (Fourth Chamber, Extended Composition), 5 December 2002 II-5126

Summary of the Judgment

Actions for annulment — Commission decision finding aid in the form of a scheme for the acquisition of land to be compatible with the common market — Association which, with the agreement of the Commission, played an active part in the formal procedure for the review of a previous version of the same scheme and in the informal discussions relating to the implementation of the decision originally adopted, finding it incompatible with the common market — Specific legal interest in bringing proceedings for the defence of its negotiating position — Whether admissible

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding aid in the form of a scheme for the acquisition of land to be compatible with the common market — Association defending the property rights and interests of its members, who are operators in the agricultural and forestry sectors — Status as a grouping of parties concerned within the meaning of Article 88(2) EC — Whether admissible

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding aid to be compatible with the common market — Association formed to promote the collective interests of its members, some of whom are parties concerned within the meaning of Article 88(2) EC — Whether admissible

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding aid to be compatible with the common market without initiating the inter partes procedure — Action brought by a party concerned within the meaning of Article 88(2) EC seeking to safeguard his procedural rights allegedly infringed by the failure to initiate the inter partes procedure — Whether admissible

Where, without initiating the 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 the decision in question before the Court. Therefore, where, by an action for the annulment of a Commission decision taken at the end of the preliminary stage, an applicant seeks to secure compliance with the procedural guarantees provided for by Article 88(2) EC, the mere fact that it has the status of a ‘party concerned’ within the meaning of that provision is sufficient for it to be regarded as directly and individually concerned for the purposes of the fourth paragraph of Article 230 EC. (see para. 44)

Since the Treaty imposes on the Commission the obligation, in connection with the review of State aid, to give the parties concerned the opportunity to submit their comments only in the context of the stage of the review provided for by Article 88(2) EC, those parties can assert the objectively difficult nature of the review to be carried out by the Commission and secure compliance with their procedural guarantees only if they have the opportunity of contesting before the Court of First Instance the decision not to initiate the procedure under Article 88(2) EC. Even where, in its action under the fourth paragraph of Article 230 EC, an applicant has not expressly alleged infringement by the Commission of the obligation to initiate the procedure under Article 88(2) EC, preventing the exercise of the procedural rights provided for thereby, it may be clear from the analysis of the pleas for annulmentput forward in support of that action that the applicant is seeking to establish that the measures at issue pose serious difficulties as regards their compatibility with the common market, difficulties which place the Commission under an obligation to initiate the formal procedure, which it is required to do if an initial review has not objectively enabled it to overcome them all. (see paras 47-49)

‘Parties concerned’ within the meaning of Article 88(2) EC include not only the undertaking or undertakings benefiting from the aid, but those persons, undertakings or associations whose interests might be affected by the grant thereof, in particular competing undertakings and trade associations in the sector concerned. In order to be able to claim the status of a party concerned, an undertaking other than the recipient of the aid must demonstrate that its competitive position in the market is affected by the grant thereof. Where that is not the case, it does not have the status of a party concerned within the meaning of Article 88(2) EC. (see para. 51)

Where some members of an association, who are economic operators capable of being regarded as direct competitors of the beneficiaries of disputed aid, are affected in terms of their competitive position by a Commission decision finding a State aid compatible with the common market, and would therefore, as ‘parties concerned’ within the meaning of Article 88(2) EC, be entitled to bring individual actions for annulment of that decision, it will be possible to regard that association as being entitled to bring an action against it in so far as that association was formed to promote the collective interests of its members. (see paras 53-54, 60)

An association formed to defend the property rights and interests of its members, and in particular the interest of farmers and foresters in being able to obtain land despite their unfavourable position vis-à-vis the potential beneficiaries of the land acquisition scheme, is in fact defending the commercial and competitive interests of those members. For that reason, the argument that such an association does not represent interests of undertakings but general social interests and that its action against the Commission decision authorising that scheme concerns only aspects relating to property law falling outside the Community framework under Article 295 EC cannot be accepted. Consequently, it must be considered to be entitled to bring an action for annulment on behalf of its members who, as parties concerned within the meaning of Article 88(2) EC, could have done so individually. (see paras 62-63)

An association which played an active part both in the formal review procedure which led to the adoption of an initial Commission decision declaring a scheme for the acquisition of land incompatible with the common market and ordering recovery of the aid and in the informal discussions relating to its implementation can be considered to be individually concerned by the decision declaring that scheme compatible following its modification by the national legislature, inasmuch as it claims a specific legal interest in bringing proceedings because its negotiating position is affected by that decision. (see paras 65-66)