Federal Republic of Germany (C-75/05 P), Glunz AG and OSB Deutschland GmbH (C-80/05 P) v Kronofrance SA.
Date: 2008-09-11
36. According to settled case-law, 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 such a decision (see, among others, Plaumann  v Commission , at 107; Case C‑198/91 Cook  v Commission  [1993] ECR I‑2487, paragraph 20; Case C‑225/91 Matra v Commission  [1993] ECR I‑3203, paragraph 14; and Case C‑78/03 P Commission  v Aktionsgemeinschaft Recht und Eigentum  [2005] ECR I‑10737, paragraph 33).
37. Since the present action concerns a Commission decision on State aid, it must be borne in mind that, 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 Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments ( Cook  v Commission , paragraph 22; Matra  v Commission , paragraph 16; Case C-367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 38; and Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 34.
38. It follows that, 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 judicature. 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 ( Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 35 and the case-law cited there).
39. The Court has had occasion to observe that such parties concerned are any persons, undertakings or associations whose interests might be affected by the granting of aid, that is, in particular competing undertakings and trade associations ( Commission  v Sytraval and Brink’s France , paragraph 41, and Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 36).
40. On the other hand, if the applicant calls in 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 considered admissible. It must then demonstrate that it enjoys a particular status within the meaning of Plaumann  v Commission . That would in particular apply where the applicant’s market position would be substantially affected by the aid to which the decision at issue relates (see, to that effect, Case 169/84 Cofaz and Others  v Commission  [1986] ECR 391, paragraphs 22 to 25, and Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 37).
48. In the context of an appeal, such an assessment is subject to review by the Court of Justice only where the facts and evidence put before the Court of First Instance have been distorted (see for example, to that effect, Case C‑53/92 P Hilti  v Commission  [1994] ECR I‑667, paragraph 42, and Case C‑206/04 P Mühlens  v OHIM  [2006] ECR I‑2717, paragraph 28).
59. It is true, as the appellants submit, that, in the application of Article 87(3) EC, the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments which must be made in a Community context (see for example, to that effect, Case 310/85 Deufil  v Commission [1987] ECR 901, paragraph 18). In that context, judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (Case C‑351/98 Spain  v Commission  [2002] ECR I‑8031, paragraph 74; Case C‑409/00 Spain v Commission  [2003] ECR I‑1487, paragraph 93; and Case C‑91/01 Italy  v Commission  [2004] ECR I‑4355, paragraph 43).
60. However, it should be pointed out that, in adopting rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission  [2005] ECR I‑5425, paragraph 211).
61. Thus, in the specific area of State aid, the Court has already had occasion to stress that the Commission is bound by the guidelines and notices that it issues, inasmuch as they do not depart from the rules in the Treaty and are accepted by the Member States (see, for example, Case C‑409/00 Spain  v Commission , paragraphs 69 and 95, and Italy v Commission , paragraph 45, both cited above).
65. In that respect, although the Commission is bound by the guidelines and notices that it issues in the field of State aid, that is so only to the extent that those texts do not depart from the proper application of the rules in the Treaty, since the texts cannot be interpreted in a way which reduces the scope of Articles 87 EC and 88 EC or which contravenes the aims of those articles (see, to that effect, Deufil  v Commission , paragraph 22; Case C‑351/98 Spain v Commission , paragraph 53; Italy  v Commission , point 45, all cited above; and, by analogy, Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187  v Commission  [2006] ECR I‑5479, paragraph 72).
66. The Court of First Instance was therefore justified in holding, in paragraph 89 of the judgment under appeal, that the multisectoral framework of 1998 should be interpreted in the light of Article 87 EC and of the principle of incompatibility of public aid set out therein, in order to attain the objective sought by that provision, namely undistorted competition in the common market.
78. As regards the assessment by the Court of First Instance of applications made by a party for measures of organisation of the procedure or enquiry, it must be pointed out that the Court of First Instance is the sole judge of any need to supplement the information available to it in respect of the cases before it (see, for example, Case C‑315/99 P Ismeri Europa v Court of Auditors  [2001] ECR I‑5281, paragraph 19; Case C‑136/02 P Mag Instrument  v OHIM  [2004] ECR I‑9165, paragraph 76; and Case C‑260/05 P Sniace  v Commission  [2007] ECR I‑0000, paragraph 77). Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the Court of First Instance is apparent from the documents in the case-file ( Ismeri Europa v Court of Auditors , paragraph 19, and Joined Cases C‑24/01 P and C‑25/01 P Glencore and Compagnie Continentale  v Commission  [2002] ECR I‑10119, paragraphs 77 and 78).