Stichting Woonpunt and Others v European Commission.
Date: 2014-02-27
30. With regard to the third argument, the Court has already held that where an applicant seeks the annulment of a Commission decision not to raise objections, on the basis of the infringement of its procedural rights, it is for that applicant to show that, during the preliminary phase of examination of the measure notified, the Commission should have had doubts as to the compatibility of that measure with the common market (see, to that effect, Case C‑83/09 P Commission  v Kronoply and Kronotex  [2011] ECR I‑4441, paragraph 59).
43. As well as other amendments, the Treaty of Lisbon, under the fourth paragraph of Article 263 TFEU, relaxed the conditions of admissibility of actions for annulment brought by natural and legal persons against acts of the European Union by adding a third limb to that provision. Since the effect of that limb is that the admissibility of actions for annulment brought by natural and legal persons is not subject to the condition of individual concern, it also makes possible legal actions against regulatory acts which do not entail implementing measures and are of direct concern to the applicant (see, to that effect, Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council  [2013] ECR, paragraph 57).
44. The fourth paragraph of Article 263 TFEU provides, therefore, for two situations in which natural or legal persons are accorded standing to institute proceedings against an act which is not addressed to them. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (Case C‑274/12 P Telefónica  v Commission  [2013] ECR, paragraph 19).
45. In this context, it should be recalled that the criterion which makes the admissibility of an action brought by a natural or legal person against a decision addressed to another person subject to the conditions governing admissibility laid down in the fourth subparagraph of Article 263 TFEU raises an absolute bar to proceeding which the European Union Courts may consider at any time, even of their own motion (see, to that effect, Case C‑362/06 P Sahlstedt and Others  v Commission  [2009] ECR I‑2903, paragraph 22).
50. In this regard, the Court has already held that the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU ( Telefónica  v Commission , paragraph 30).
51. Furthermore, in order to determine whether the measure being challenged entails implementing measures, reference should be made exclusively to the subject-matter of the action ( Telefónica  v Commission , paragraph 31).
52. In the present case, first, the appellants seek, by their action, the annulment of the contested decision by which the Commission confirms that aid measure E 2/2005 is compatible with the common market, following the commitments provided by the Netherlands authorities amending the aid scheme which benefitted the appellants. It is apparent from recital 41 to the contested decision that those commitments will be implemented by a ministerial decree and by a new housing law.
53. Secondly, the contested decision does not define the specific and actual consequences for the appellants’ activities of the application of the commitments given by the Netherlands authorities in the context of aid measure E 2/2005. Those consequences will materialise by way of measures adopted to implement the ministerial decree and the new housing law, which, as such, are themselves implementing measures entailed by the contested decision within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
57. As was pointed out by the General Court in paragraph 28 of the order under appeal, third parties may be individually concerned by a decision addressed to another person 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 these factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann  v Commission  [1963] ECR 95, 107; Case C‑298/00 P Italy  v Commission  [2004] ECR I‑4087, paragraph 36; Inuit Tapiriit Kanatami and Others  v Parliament and Council , paragraph 72; and Telefónica  v Commission , paragraph 46).
58. In this regard, it is true, as the General Court pointed out in paragraph 47 of the order under appeal, that the mere possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to those persons as long as that measure is applied in accordance with an objective legal or factual situation defined by the act in question (see Telefónica  v Commission , paragraph 47).
59. It is, however, clear from settled case-law that where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (see, to that effect, Case C‑125/06 P Commission  v Infront WM  [2008] ECR I‑1451, paragraphs 71 and 72 and the case-law cited).
66. While the Court is not in a position, at the present stage of the proceedings, to give judgment on the substance of the action brought before the General Court, it does, by contrast, have the information necessary to enable it to give final judgment on the admissibility of that action against the contested decision, in so far as the latter relates to aid measure E 2/2005.
67. In this regard, it should be noted, first, that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, to that effect, Case C‑519/07 P Commission  v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraph 63).
68. Secondly, the appellants must, under the second limb of the fourth paragraph of Article 263 TFEU, be concerned not only individually but also directly by the act which they are seeking to have annulled, in the sense that that act must directly affect the legal situation of those parties and leave no discretion to the authorities responsible for implementing that act, such implementation being purely automatic and resulting from European Union law alone, without the application of other intermediate rules (see, to that effect, Commission  v Koninklijke FrieslandCampina , paragraphs 48 and 49).