Mory SA and Others v European Commission.
Date: 2015-09-17
24. It must be recalled that the Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (see judgment in Vnuk , C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
25. Pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 29 and the case-law cited).
26. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment in E.ON Energie  v Commission , C‑89/11 P, EU:C:2012:738, paragraph 62).
27. However, the Court may at any moment, having heard the Advocate General, order the reopening of the oral part of the procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Nordzucker , C‑148/14, EU:C:2015:287, paragraph 24).
55. According to the Court’s settled case-law, 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, inter alia, to that effect, judgments in Commission  v Koninklijke FrieslandCampina , C‑519/07 P, EU:C:2009:556, paragraph 63; ACEA  v Commission , C‑319/09 P, EU:C:2011:857, paragraph 67; Stichting Woonpunt and Others  v Commission , C‑132/12 P, EU:C:2014:100, paragraph 67; and Stichting Woonlinie and Others  v Commission , C‑133/12 P, EU:C:2014:105, paragraph 54).
56. An appellant’s interest in bringing proceedings must be vested and current (see, to that effect, judgments in Commission  v Koninklijke FrieslandCampina , C‑519/07 P, EU:C:2009:556, paragraph 65, and Planet  v Commission , C‑564/13 P, EU:C:2015:124, paragraph 34). It may not concern a future and hypothetical situation (see, to that effect, judgments in Stroghili  v Court of Auditors , 204/85, EU:C:1987:21, paragraph 11, and Cañas  v Commission , C‑269/12 P, EU:C:2013:415, paragraphs 16 and 17).
57. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see, to that effect, judgments in Abdulrahim  v Council and Commission , C‑239/12 P, EU:C:2013:331, paragarph 61, and Cañas  v Commission , C‑269/12 P, EU:C:2013:415, paragraph 15).
58. The interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (see, to that effect, order in S. v Commission , 206/89 R, EU:C:1989:333, paragraph 8, and judgment in Andechser Molkerei Scheitz  v Commission , C‑682/13 P, EU:C:2015:356, paragraph 27).
59. Moreover, the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. 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 (see, to that effect, inter alia, judgments in Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 19, and Stichting Woonpunt and Others  v Commission , C‑132/12 P, EU:C:2014:100, paragraph 44).
62. In that regard, the appellants are wrong to claim that the mere fact that a natural or legal person is directly and individually concerned necessarily indicates his interest in bringing proceedings. As is apparent from paragraphs 55 to 59 of the present judgment, an interest in bringing proceedings and locus standi  are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in order to be admissible to bring an action for annulment under the fourth paragraph of Article 263 TFEU (see, to that effect, inter alia, judgments in Stichting Woonpunt and Others  v Commission , C‑132/12 P, EU:C:2014:100, paragraphs 67 and 68, and Stichting Woonlinie and Others  v Commission , C‑133/12 P, EU:C:2014:105, paragraphs 54 and 55).
68. It must be observed at the outset that although it is known that the General Court has exclusive jurisdiction to find and appraise the facts and, in principle, to examine the evidence it accepts in support of those facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences (see, to that effect, judgment in E.ON Energie  v Commission , C‑89/11 P, EU:C:2012:738, paragraphs 64 and 65 and the case-law cited). Consequently, the question whether, in the light of such facts and evidence, the annulment of the decision at issue by the EU Courts is capable of granting the appellants a benefit in the context of an action brought before the national courts, which may establish their interest in bringing proceedings before the EU Courts, is a question of law which comes within the Court’s review in the context of an appeal.
69. It should be noted that, according to the Court’s settled case-law, an application for annulment may retain an interest as a basis for a possible action for damages (see, to that effect, judgments in Könecke Fleischwarenfabrik  v Commission , 76/79, EU:C:1980:68, paragraph 9; France and Others  v Commission , C‑68/94 and C‑30/95, EU:C:1998:148, point 74; orders in Lech-Stahlwerke  v Commission , C‑111/99 P, EU:C:2001:58, paragraphs 19 and 20; Commission  v Provincia di Imperia , C‑183/08 P, EU:C:2009:136, paragraph 30; and judgment in Abdulrahim  v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraph 64).
70. The continuation of such an interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment in Abdulrahim  v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraph 65).
76. In that regard, contrary to the finding made by the General Court in paragraph 47 of the order under appeal, the appellants cannot be required to show that, under national law, Geodis could in fact be held responsible for the damage alleged solely on the basis of the takeover of the assets of the Sernam group. It is not for the EU Courts, for the purpose of determining an interest in bringing proceedings before them, to assess the likelihood that an action brought before the national courts under national law is well founded and, therefore, to substitute itself for those courts in making such an assessment. It is, by contrast, necessary, but sufficient, that, by its outcome, the action for annulment brought before the EU Courts would be capable of benefiting the party which brought it. That is so in this case, as follows from paragraphs 74 and 75 of the present judgment.
79. It should be added that the Commission is also wrong to criticise the appellants, at the stage of present appeal, for having their action for damages before the national court on a date after that at which they brought their action for annulment before the General Court. It is apparent from the Court’s case-law referred to in paragraphs 56 and 69 of this judgment that the possibility of an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical. In the present case, it is not disputed that the appellants referred to the commencement of that action for damages in their application lodged before the General Court and that that action, as is apparent from paragraph 42 of the order under appeal, was indeed brought before the adoption of the order under appeal.
81. The General Court, therefore, erred in law by holding in paragraph 40 of the order under appeal that that action was not capable of conferring on the appellants an interest in bringing proceedings on the sole ground that that action did not seek compensation for the damage allegedly suffered, since the interest in bringing proceedings, as the Advocate General stated in point 40 of his Opinion, could arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the applicant.
91. In the second place, in so far as that objection claims that the appellants have no interest in bringing proceedings, it should be noted that, as has already been stated in paragraph 59 of the present judgment, the fourth paragraph of Article 263 TFEU provides for two situations in which natural or legal persons are granted standing to institute proceedings against an EU act not addressed to them. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, they may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them.
92. As the decision at issue, which was addressed to the French Republic, does not constitute a regulatory act under the fourth paragraph of Article 263 TFEU, since it is not an act of general application (see, to that effect, judgment in Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 56), it is necessary to determine whether the appellants are directly and individually concerned by that decision, within the meaning of that provision.
93. According to the Court’s 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 by such a decision (see, inter alia, judgments in Plaumann  v Commission , 25/62, EU:C:1963:17, p. 107; Sniace  v Commission , C‑260/05 P, EU:C:2007:700, paragraph 53; 3F  v Commission , C‑319/07 P, EU:C:2009:435, paragraph 29; and T & L Sugars and Sidul Açúcares  v Commission , C‑456/13 P, EU:C:2015:284, paragraph 63).
94. 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 108 TFEU, the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, 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 108(2) TFEU. 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, inter alia, judgment in 3F  v Commission , C‑319/07 P, EU:C:2009:435, paragraph 30 and the case-law cited).
95. It follows that, where, without initiating the formal review procedure under Article 108(2) TFEU, the Commission finds, on the basis of Article 108(3) TFEU, 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 EU Courts. For those reasons, an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 108(2) TFEU is to be declared to be admissible where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision (see, to that effect, judgments in 3F  v Commission , C‑319/07 P, EU:C:2009:435, paragraph 31 and the case-law cited, and Commission  v Kronoply and Kronotex , C‑83/09 P, EU:C:2011:341, paragraph 47).
96. The Court has had occasion to observe that such concerned parties 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 (see, inter alia, judgment in 3F  v Commission , C‑319/07 P, EU:C:2009:435, paragraph 32 and the case-law cited).
97. On the other hand, if the applicant calls into question the merits of the decision appraising the aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, the mere fact that it may be regarded as concerned within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible. It must then demonstrate that it has a particular status within the meaning of the case-law referred to in paragraph 93 of the present judgment. 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, judgments in Commission  v Aktionsgemeinschaft Recht und Eigentum , C‑78/03 P, EU:C:2005:761, paragraph 37 and the case-law cited, and British Aggregates  v Commission , C‑487/06 P, EU:C:2008:757, paragraph 30).
98. In that regard, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the decision at issue (see judgment in Sniace  v Commission , C‑260/05 P, EU:C:2007:700, paragraph 55 and the case-law cited).
99. As regards the determination of such an effect, the Court has had occasion to clarify that the mere fact that a measure such as the decision at issue 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 being individually concerned by that measure (see, to that effect, judgment in British Aggregates  v Commission , C‑487/06 P, EU:C:2008:757, paragraph 47).
100. 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 (see, inter alia, judgment in British Aggregates v Commission , C‑487/06 P, EU:C:2008:757, paragraph 48).