3F v Commission of the European Communities.
Date: 2009-07-09
29. It is settled case-law that 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, inter alia, Plaumann , at p. 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; Aktionsgemeinschaft Recht und Eigentum , paragraph 33; and Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑0000, paragraph 26).
30. As the action at first instance concerned 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 stage of the review under Article 88(2) EC. It is only at the latter stage, 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 (see Cook , paragraph 22; Matra , paragraph 16; Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 38; Aktionsgemeinschaft Recht und Eigentum , paragraph 34; and British Aggregates , paragraph 27).
31. It follows that, 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. 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 ( Aktionsgemeinschaft Recht und Eigentum , paragraph 35 and the case-law cited, and British Aggregates , paragraph 28).
32. 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, undertakings competing with the recipients of the aid and trade associations ( Sytraval and Brink’s France , paragraph 41; Aktionsgemeinschaft Recht und Eigentum , paragraph 36; and British Aggregates , paragraph 29).
34. The Court has also held that if, on the other hand, the applicant calls into question the merits of the decision appraising the aid as such, the mere fact that he may be regarded as ‘concerned’ within the meaning of Article 88(2) EC cannot suffice for the action to be considered admissible. He must then demonstrate that he enjoys a particular status within the meaning of the Plaumann  judgment. That is the case in particular where the applicant’s market position is substantially affected by the aid which is the subject of the decision at issue (Case 169/84 Cofaz and Others  v Commission  [1986] ECR 391, paragraphs 22 to 25; Aktionsgemeinschaft Recht und Eigentum , paragraph 37; Joined Cases C‑75/05 P and C‑80/05 P Germany and Others  v Kronofrance  [2008] ECR I‑0000, paragraph 40; and British Aggregates , paragraph 35).
47. As to the Court of First Instance’s interpretation of Albany  in paragraph 32 of the order under appeal, it must be observed that the Albany  case concerned a collective agreement establishing a supplementary pension scheme managed by a pension fund in the textile industry sector, affiliation to which could be made compulsory by the public authorities. Albany International BV, an undertaking in the textile sector, had refused to pay the fund the contributions for a certain period, on the ground that compulsory affiliation to the fund, by virtue of which those contributions were claimed from it, was inter alia contrary to Article 85(1) of the Treaty.
50. The Court accepted in Albany  that some restrictions of competition are inherent in collective agreements between organisations representing employers and workers. However, the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 85(1) of the Treaty when seeking jointly to adopt measures to improve conditions of work and employment. In those circumstances, the Court found that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of that provision. The Court then considered whether the nature and purpose of the agreement at issue in Albany  justified its exclusion from the scope of Article 85(1) of the Treaty, and concluded that, in that case, its exclusion from the scope of that provision was justified (see Albany , paragraphs 59 to 64).
51. It thus follows from Albany , and from the later judgments which confirmed Albany , that it is for the competent authorities and courts to consider, in each individual case, whether the nature and purpose of the agreement in question and the social policy objectives pursued by it warrant its exclusion from the scope of Article 81(1) EC (see, to that effect, inter alia, Case C‑222/98 Van der Woude  [2000] ECR I‑7111, paragraph 23).
58. That conclusion is supported by the fact that, since the Community has not only an economic but also a social purpose, the rights under the provisions of the Treaty on State aid and competition must be balanced, where appropriate, against the objectives pursued by social policy, which include, as is clear from the first paragraph of Article 136 EC, inter alia improved living and working conditions, so as to make possible their harmonisation while improvement is being maintained, proper social protection and dialogue between management and labour (see, to that effect, with respect to the Treaty provisions on freedom of establishment, Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union  [2007] ECR I‑10779, paragraph 79).
64. It should be noted, to begin with, that, when assessing the compatibility of State aid in the maritime transport sector such as the aid at issue in the present case, the social aspects of the Community guidelines may be taken into account by the Commission as part of an overall assessment which includes a large number of considerations of various kinds, linked in particular to the protection of competition, the Community’s maritime policy, the promotion of Community maritime transport, or the promotion of employment (see, to that effect, Case C‑106/98 P Comité d’entreprise de la Société française de production and Others  v Commission  [2000] ECR I‑3659, paragraph 52).
87. Ac cording to the Court’s case-law, the Van der Kooy  and CIRFS  cases thus concerned particular situations in which the applicant occupied a clearly circumscribed position as negotiator which was intimately linked to the actual subject-matter of the decision, thus placing it in a factual situation which distinguished it from all other persons (Case C‑106/98 P Comité d’entreprise de la Société française de production and Others , paragraph 45).
88. The Court has had occasion to contemplate the application of that case-law in actions seeking the annulment of a Commission decision terminating a procedure initiated under Article 88(2) EC. It has held that certain associations of economic operators which have played a significant role in the procedure under that provision must be recognised as individually concerned by such a decision, in so far as they are affected in their capacity as negotiators (see, to that effect, Case C‑106/98 P Comité d’entreprise de la Société française de production and Others , paragraphs 40 to 42).