Kingdom of Spain v Commission of the European Communities.
Date: 2007-11-22
30. According to the settled case-law of the Court, 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, in particular, Case 25/62 Plaumann  v Commission  [1963] ECR 95, p. 107; Case C‑198/91 Cook  v Commission [1993] ECR I‑2487, paragraph 20; and Case C‑78/03 P Commission  v Aktionsgemeinschaft Recht und Eigentum  [2005] ECR I‑10737, paragraph 33).
31. With regard more particularly to the field of State aid, persons other than those to whom a decision is addressed who call in question the merits of a decision appraising the aid are regarded as being individually concerned by that decision where their position on the market is substantially affected by the aid which is the subject of the decision in question (see, to that effect, Cofaz and Others v Commission , paragraphs 22 to 25, and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraphs 37 and 70).
32. As regards establishing such an effect, the Court has had occasion to clarify that the mere fact that a measure such as the contested decision may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure (see, to that effect, Joined Cases 10/68 and 18/68 Eridania and Others  v Commission  [1969] ECR 459, paragraph 7, and order of 21 February 2006 in Case C‑367/04 P Deutsche Post and DHL Express  v Commission , not published in the ECR, paragraph 40).
33. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it in a similar way to the undertaking in receipt of the aid (Case C‑106/98 P Comité d’entreprise de la Société française de production and Others  v Commission  [2000] ECR I‑3659, paragraph 41, and order in Deutsche Post and DHL Express  v Commission , paragraph 41).
34. However, contrary to the claims of the Kingdom of Spain and the Commission, it does not follow from the case-law of the Court that a particular position of this kind, which distinguishes a person other than the persons addressed, within the meaning of Plaumann  v Commission , from any other economic operator, has to be inferred from factors such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question.
35. As the Advocate General noted in points 43 to 45 of her Opinion, the grant of State aid can have an adverse effect on the competitive situation of an operator in other ways too, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s position on the market cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance.
39. In particular, therefore, Lenzing’s situation can be clearly distinguished from that at issue in Commission  v Aktionsgemeinschaft Recht und Eigentum  (paragraph 72), in which the Court held that there was no substantial adverse effect on the competitive position of the members of the applicant association in that case, owing to the fact that a very large number of operators, namely all the farmers in the European Union, could be regarded as competitors of the beneficiaries of the land acquisition scheme in question.
54. Accordingly, the majority of the arguments advanced by the Spanish Government and the Commission, in reality, call in question the assessment of the evidence made by the Court of First Instance and complain that it failed to take into consideration certain factors which they regard as relevant or took into account other factors which they consider to be irrelevant. However, 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, and no distortion has been substantiated or alleged by the Spanish Government in the present case (see to that effect, in particular, Case C‑53/92 P Hilti  v Commission [1994] ECR I‑667, paragraph 42; Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 49; and Case C‑206/04 P Mülhens  v OHIM  [2006] ECR I‑2717, paragraph 28).
56. As regards the argument that the Court of First Instance exceeded the limits of its power of review established by case-law in an area giving rise to complex economic assessments, it must be borne in mind, first of all, that, whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature (Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39).
57. According to the case-law of the Court of Justice, not only must the Community judicature establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, Case 98/78 Racke  [1979] ECR 69, paragraph 5; Case C‑16/90 Nölle  [1991] ECR I‑5163, paragraph 12; Commission  v Tetra Laval,  paragraph 39; and Case C‑326/05 P Industrias Químicas del Vallés  v Commission [2007] ECR I‑0000, paragraph 76). However, when conducting such a review, the Community judicature must not substitute its own economic assessment for that of the Commission (order in Case C‑323/00 P DSG Dradenauer Stahlgesellschaft  v Commission  [2002] ECR I‑3919, paragraph 43).
58. Moreover, it must be noted that, where a Community institution has a wide discretion, the review of observance of certain procedural guarantees is of fundamental importance. Thus, the Court of Justice has had occasion to specify that those guarantees include the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (see Case C‑269/90 Technische Universität München  [1991] ECR I‑5469, paragraph 14, and Joined Cases C‑258/90 and C‑259/90 Pesquerias De Bermeo and Naviera Laida  v Commission [1992] ECR I‑2901, paragraph 26).
59. As far as the present case is concerned, it is common ground that the Commission makes a complex economic assessment when it examines whether particular measures can be described as State aid because the public authorities did not act in the same way as a private creditor.