Commission of the European Communities v Aktionsgemeinschaft Recht und Eigentum eV.
Date: 2005-12-13
33. 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 (see, among others, Case 25/62 Plaumann  v Commission  [1963] ECR 95; Case C-198/91 Cook  v Commission [1993] ECR I‑2487, paragraph 20, and Case C-298/00 P Italy  v Commission  [2004] ECR I-4087, paragraph 36).
34. In the case of 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 EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments ( Cook  v Commission , paragraph 22, Case C‑225/91 Matra  v Commission  [1993] ECR I-3203, paragraph 16, and Case C-367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I-1719, paragraph 38).
35. Where, without initiating the formal review 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 ( Cook  v Commission , paragraph 23, Matra  v Commission , paragraph 17, and Commission  v Sytraval and Brink’s France , paragraph 40). For those reasons, the Court declares to be admissible an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC where he seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision ( Cook  v Commission , paragraphs 23 to 26, and Matra  v Commission , paragraphs 17 to 20).
36. The parties concerned, within the meaning of Article 88(2) EC, who are thus entitled under the fourth paragraph of Article 230 EC to institute proceedings for annulment are those persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (see, in particular, Commission  v Sytraval and Brink’s France , paragraph 41).
37. 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 to render the action admissible. It must then demonstrate that it has a particular status within the meaning of the Plaumann  v Commission case‑law. That applies in particular where the applicant’s market position is substantially affected by the aid to which the decision at issue relates (see, to that effect, the judgment in Case 169/84 Cofaz and Others  v Commission  [1986] ECR 391, paragraphs 22 to 25, and the order in Sveriges Betodlares Centralförening and Henrikson  v Commission , paragraph 45).
70. In this case, ARE, which is an association set up to promote the collective interests of a category of persons, can only be regarded as being individually concerned within the meaning of the Plaumann  v Commission  case‑law to the extent to which the position of its members in the market is substantially affected by the aid scheme covered by the contested decision (see, to that effect, Cofaz and Others  v Commission  [1986] ECR 391, paragraphs 22 to 25, and the order in Sveriges Betodlares Centralförening and Henrikson  v Commission , paragraph 45).
72. Even if, as is apparent from paragraphs 54 and 60 of the contested judgment, certain of ARE’s members are economic operators who may be regarded as direct competitors of beneficiaries of the aid provided for by the Compensation Law and, therefore, their competitive position is necessarily affected by the contested decision, it does not follow that their position in the market could be substantially affected by the grant of such aid since it appears to be accepted, as is apparent from paragraph 55 of the contested judgment, that all farmers in the European Union may be regarded as competitors of the beneficiaries of the land acquisition scheme.