Case C-75/02 P: Appeal brought on 6 March 2002 by Territorio Histórico de Alava — Diputación Foral de Alava and Others against the order delivered on 11 January 2002 by the Third Chamber of the Court of First Instance of the European Communities in Case T-77/01 between Territorio Histórico de Alava — Diputación Foral de Alava and Others and Commission of the European Communities
Date: 2002-05-04
Institutions: Court of Justice
Subjects: General Court (EU), State aid, action for annulment (EU), coal industry, economic concentration, iron and steel industry

C 109/36

EN

Official Journal of the European Communities

4.5.2002

Appeal brought on 6 March 2002 by Territorio Histo´ rico
de Alava — Diputacio´ n Foral de Alava and Others against
the order delivered on 11 January 2002 by the Third
Chamber of the Court of First Instance of the European
Communities in Case T-77/01 between Territorio His-
to´ rico de Alava — Diputacio´ n Foral de Alava and Others
and Commission of the European Communities

does not justify that, on the raising of an objection of
inadmissibility,
locus standi based on the EC Treaty
should be ruled out and the action dismissed as inadmis-
sible.

(Case C-75/02 P)

(2002/C 109/61)

An appeal against the order delivered on 11 January 2002 by
the Third Chamber of the Court of First Instance of the
European Communities in Case T-77/01 between Territorio
Histo´ rico de Alava — Diputacio´ n Foral de Alava and Others
and Commission of the European Communities was brought
before the Court of Justice of the European Communities on
6 March 2002 by (1) Territorio Histo´ rico de Alava —
Diputacio´ n Foral de Alava, (2) Territorio Histo´ rico de Bizcaia
— Diputacio´ n Foral de Bizcaia, (3) Territorio Histo´ rico de
Gipuzkoa — Diputacio´ n Foral de Gipuzkoa and Juntas Gen-
erales de Gipuzkoa and (4) Comunidad Auto´ noma del Paı´s
Vasco — Gobierno Vasco, represented by Ramo´ n Falco´ n y
Tella, abogado, with an address for service in Luxembourg.

The appellants claim that the Court should:

1.

set aside the order;

2.

declare admissible the action brought before the Court of
First Instance (Case T-77/01) and order the Court of First
Instance to give a judgment on the substance, without
prejudice to the possibility of staying proceedings pending
judgment by the Court of Justice in C-501/00 Spain v
Commission;

3.

order the Commission to pay the costs of proceedings in
the appeal and at first instance.

Pleas and main arguments

— The order under appeal places a literal, restrictive and
incorrect construction on the second paragraph of
Article 33 CA: the reason the second paragraph of
Article 33 CA refers to undertakings and associations of
undertakings is that the authors of the Treaty assumed
that acts based on the ECSC Treaty could only affect coal
or steel producers or associations thereof, without that
implying a desire to exclude other persons finding
themselves in a situation similar to that of an undertaking
to which aid is granted under a Commission decision.
Regional or territorial authorities which adopt a measure
classified as aid by a Commission decision are in a
situation similar to that of the recipient of aid.

— The finding of inadmissibility runs counter to the prin-
ciple of effective legal protection, a defect which cannot
be remedied by granting an application for leave to
intervene in a parallel action before the Court of Justice:
the standing of the Member State, in broad terms, as
institutional or privileged party, does not suffice to afford
effective legal protection of the interests of regional or
territorial authorities which adopt a measure classified as
aid, since those interests are different from the interests
of the State. The appellants do not seek to equate the
position of territorial authorities with tax-raising powers
with the position of the Member States, as privileged or
institutional parties; however, they do seek to obtain
recognition of the possibility that such territorial auth-
orities may have a remedy, at least as effective as that
afforded to undertakings, where the tax-raising powers
are affected by a Commission decision. In the present
case, although the Court of Justice granted the application
for leave to intervene submitted by the Basque Diputa-
ciones Forales in the action brought by the State
(C-501/00), the fact remains that the State might not
have brought proceedings, or might have brought pro-
ceedings for a different purpose or based on different
arguments to those which the present appellants consider
appropriate. Moreover, the State could yet withdraw from
Case C-501/00, which would leave the present appellants
defenceless.

— The order under appeal should have held admissible the
action brought under Article 230 EC, even if in order to
do so it first had to examine provisionally some of the
matters of substance: locus standi cannot be ruled out for
the mere fact that the Commission erroneously based on
the ECSC Treaty a decision which should have been based
on the EC Treaty (or on both simultaneously). It is true
the
that
decision should have been based on the EC Treaty or on
the ECSC Treaty is a matter of substance. However, that

the question whether,

in the present case,