Kwekerij Gebroeders van der Kooy BV and others v Commission of the European Communities.
Date: 1988-02-02
14 AS THE COURT HAS PREVIOUSLY HELD ( SEE IN PARTICULAR THE JUDGMENTS OF 15 JULY 1963 IN CASE 25/62 PLAUMANN V COMMISSION (( 1963 )) ECR 95 AND 14 JULY 1983 IN CASE 231/82 SPIJKER V COMMISSION (( 1983 )) ECR 2559 ), PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE INDIVIDUALLY CONCERNED BY THAT DECISION ONLY IF IT 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 IF BY VIRTUE OF THOSE FACTORS IT DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .
15 THAT IS NOT SO IN THIS CASE . THE CONTESTED DECISION IS OF CONCERN TO THE APPLICANTS SOLELY BY VIRTUE OF THEIR OBJECTIVE CAPACITY AS GROWERS ESTABLISHED IN THE NETHERLANDS AND QUALIFYING FOR THE PREFERENTIAL GAS TARIFF ON THE SAME FOOTING AS ANY OTHER GROWER IN THE SAME CIRCUMSTANCES . WITH REGARD TO THEM, THEREFORE, THE DECISION IS A MEASURE OF GENERAL APPLICATION COVERING SITUATIONS WHICH ARE DETERMINED OBJECTIVELY, AND ENTAILS LEGAL EFFECTS FOR CATEGORIES OF PERSONS ENVISAGED IN A GENERAL AND ABSTRACT MANNER . THUS THE CONTESTED DECISION CANNOT BE REGARDED AS BEING OF INDIVIDUAL CONCERN TO THE APPLICANTS .
21 ALTHOUGH THE LANDBOUWSCHAP CANNOT BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED BY DECISION 85/215 AS A RECIPIENT OF THE CONTESTED AID, IT IS NONE THE LESS TRUE THAT, AS THE LANDBOUWSCHAP RIGHTLY ARGUES, ITS POSITION AS NEGOTIATOR OF GAS TARIFFS IN THE INTERESTS OF THE GROWERS IS AFFECTED BY DECISION 85/215 .
22 FURTHERMORE, IN THAT CAPACITY THE LANDBOUWSCHAP HAS TAKEN AN ACTIVE PART IN THE PROCEDURE UNDER ARTICLE 93 ( 2 ) BY SUBMITTING WRITTEN COMMENTS TO THE COMMISSION AND BY KEEPING IN CLOSE CONTACT WITH THE RESPONSIBLE OFFICIALS THROUGHOUT THE PROCEDURE .
23 LASTLY, THE LANDBOUWSCHAP IS ONE OF THE PARTIES TO THE CONTRACT WHICH ESTABLISHED THE TARIFF DISALLOWED BY THE COMMISSION, AND IN THAT CAPACITY IS MENTIONED SEVERAL TIMES IN DECISION 85/215 . IN THAT CAPACITY IT WAS ALSO OBLIGED, IN ORDER TO GIVE EFFECT TO THE DECISION, TO COMMENCE FRESH TARIFF NEGOTIATIONS WITH GASUNIE AND TO REACH A NEW AGREEMENT .
24 IT MUST THEREFORE BE CONCLUDED THAT IN THE CIRCUMSTANCES OF THIS CASE THE LANDBOUWSCHAP WAS ENTITLED TO BRING PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 FOR THE ANNULMENT OF COMMISSION DECISION 85/215 .
28 IT SHOULD BE OBSERVED AT THE OUTSET THAT THIS CASE RAISES THE QUESTION WHETHER THE FIXING OF THE TARIFF CHARGED FOR A SOURCE OF ENERGY AT A LEVEL LOWER THAN THAT WHICH WOULD NORMALLY HAVE BEEN CHOSEN MAY BE REGARDED AS "AID" WHEN IT IS ATTRIBUTABLE TO ACTION BY THE MEMBER STATE CONCERNED AND THE OTHER CONDITIONS LAID DOWN BY ARTICLE 92 ARE SATISFIED . IN SUCH CIRCUMSTANCES THE STATE, OR THE ENTITY ON WHICH IT EXERTS INFLUENCE, DOES NOT APPLY THE TARIFF AS AN ORDINARY ECONOMIC AGENT BUT USES IT TO CONFER A PECUNIARY ADVANTAGE ON ENERGY CONSUMERS, IN THE SAME WAY AS IT GRANTS AID TO CERTAIN UNDERTAKINGS, FORGOING THE PROFIT WHICH IT COULD NORMALLY REALIZE . IN THIS CASE, THE APPLICANTS CONCEDE THAT A PREFERENTIAL TARIFF APPLICABLE TO A GIVEN CATEGORY OF UNDERTAKINGS MAY CONSTITUTE AID, BUT DENY THAT THAT IS TRUE OF THE TARIFF AT ISSUE .
29 IT SHOULD BE POINTED OUT THAT THE PREFERENTIAL TARIFF WAS APPLICABLE ONLY TO UNDERTAKINGS ENGAGED IN HOTHOUSE HORTICULTURE . IN THAT SECTOR, HEATING COSTS ACCOUNT FOR A LARGE PART OF PRODUCTION COSTS . IF, IN SUCH CIRCUMSTANCES, THE TARIFF APPLIED TO THOSE UNDERTAKINGS DISPLAYS A DOWNWARD TREND WHICH IS NOT REFLECTED BY THE TARIFFS APPLICABLE TO UNDERTAKINGS IN OTHER SECTORS, THAT IS PRIMA FACIE EVIDENCE FOR THE CONCLUSION THAT THE PREFERENTIAL TARIFF CONSTITUTES AID .
30 THAT WOULD NOT BE THE CASE, HOWEVER, IF IT WERE DEMONSTRATED THAT THE PREFERENTIAL TARIFF WAS, IN THE CONTEXT OF THE MARKET IN QUESTION, OBJECTIVELY JUSTIFIED BY ECONOMIC REASONS SUCH AS THE NEED TO RESIST COMPETITION ON THE SAME MARKET FROM OTHER SOURCES OF ENERGY THE PRICE OF WHICH WAS COMPETITIVE . IN DETERMINING WHETHER SUCH COMPETITION IS A REAL PROSPECT ACCOUNT SHOULD BE TAKEN NOT ONLY OF THE DIFFERENT PRICE LEVELS BUT ALSO OF THE COSTS INVOLVED IN CONVERSION TO A NEW SOURCE OF ENERGY, SUCH AS REPLACEMENT AND DEPRECIATION COSTS FOR HEATING EQUIPMENT .
35 AS THE COURT HAS HELD ( SEE IN PARTICULAR THE JUDGMENTS OF 22 MARCH 1977 IN CASE 78/76 STEINIKE V GERMANY (( 1977 )) ECR 595 AND 30 JANUARY 1985 IN CASE 290/83 COMMISSION V FRANCE (( 1985 )) ECR 439 ), THERE IS NO NECESSITY TO DRAW ANY DISTINCTION BETWEEN CASES WHERE AID IS GRANTED DIRECTLY BY THE STATE AND CASES WHERE IT IS GRANTED BY PUBLIC OR PRIVATE BODIES ESTABLISHED OR APPOINTED BY THE STATE TO ADMINISTER THE AID . IN THIS INSTANCE, THE DOCUMENTS BEFORE THE COURT PROVIDE CONSIDERABLE EVIDENCE TO SHOW THAT THE FIXING OF THE DISPUTED TARIFF WAS THE RESULT OF ACTION BY THE NETHERLANDS STATE .
36 FIRST OF ALL, THE SHARES IN GASUNIE ARE SO DISTRIBUTED THAT THE NETHERLANDS STATE DIRECTLY OR INDIRECTLY HOLDS 50% OF THE SHARES AND APPOINTS HALF THE MEMBERS OF THE SUPERVISORY BOARD - A BODY WHOSE POWERS INCLUDE THAT OF DETERMINING THE TARIFFS TO BE APPLIED . SECONDLY, THE MINISTER FOR ECONOMIC AFFAIRS IS EMPOWERED TO APPROVE THE TARIFFS APPLIED BY GASUNIE, WITH THE RESULT THAT, REGARDLESS OF HOW THAT POWER MAY BE EXERCISED, THE NETHERLANDS GOVERNMENT CAN BLOCK ANY TARIFF WHICH DOES NOT SUIT IT . LASTLY, GASUNIE AND THE LANDBOUWSCHAP HAVE ON TWO OCCASIONS GIVEN EFFECT TO THE COMMISSION' S REPRESENTATIONS TO THE NETHERLANDS GOVERNMENT SEEKING AN AMENDMENT OF THE HORTICULTURAL TARIFF, FIRST FOLLOWING COMMISSION DECISION 82/73, WHICH WAS LATER REPEALED, AND THEN AGAIN FOLLOWING DECISION 85/215, WHICH IS CHALLENGED IN THESE PROCEEDINGS .
37 CONSIDERED AS A WHOLE, THESE FACTORS DEMONSTRATE THAT GASUNIE IN NO WAY ENJOYS FULL AUTONOMY IN THE FIXING OF GAS TARIFFS BUT ACTS UNDER THE CONTROL AND ON THE INSTRUCTIONS OF THE PUBLIC AUTHORITIES . IT IS THUS CLEAR THAT GASUNIE COULD NOT FIX THE TARIFF WITHOUT TAKING ACCOUNT OF THE REQUIREMENTS OF THE PUBLIC AUTHORITIES .
38 IT MAY THEREFORE BE CONCLUDED THAT THE FIXING OF THE CONTESTED TARIFF IS THE RESULT OF ACTION BY THE NETHERLANDS STATE AND THUS FALLS WITHIN THE MEANING OF THE PHRASE "AID GRANTED BY A MEMBER STATE" UNDER ARTICLE 92 OF THE TREATY .
2 . WHETHER THE TARIFF IS LOWER THAN WAS NECESSARY TO TAKE ACCOUNT OF THE RISK OF CONVERSION TO COAL
71 AS A PRELIMINARY OBSERVATION IT SHOULD BE POINTED OUT THAT, AS THE COURT HAS CONSISTENTLY HELD ( SEE MOST RECENTLY THE JUDGMENT OF 22 JANUARY 1986 IN CASE 250/84 ERIDANIA V CASSA CONGUAGLIO (( 1986 )) ECR 134 ), THE STATEMENT OF REASONS REQUIRED BY ARTICLE 190 OF THE TREATY MUST BE APPROPRIATE TO THE NATURE OF THE MEASURE IN QUESTION AND MUST SHOW CLEARLY AND UNEQUIVOCALLY THE REASONING OF THE INSTITUTION WHICH ADOPTED THE MEASURE, SO AS TO INFORM THE PERSONS CONCERNED OF THE JUSTIFICATION FOR THE MEASURE ADOPTED AND TO ENABLE THE COURT TO EXERCISE ITS POWERS OF REVIEW .