European Commission v Hansestadt Lübeck.
Date: 2016-12-21
15


As the General Court recalled in paragraph 26 of the judgment under appeal, persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth paragraph of Article 263 TFEU 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 (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, 107; of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 72; and of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 46).
20


As the Commission challenges that view by its line of argument set out in paragraph 13 of the present judgment, it should be pointed out that, in the case of an interpretation of national law by the General Court, the Court of Justice has jurisdiction, on appeal, only to determine whether that law was distorted, and the distortion must be obvious from the documents on its file (see, to that effect, judgments of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 53, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraphs 79 and 80 and the case-law cited).
21


In the present instance, the Commission has not pleaded and, a fortiori, has not demonstrated such distortion of national law. Indeed, it has neither contended nor established that the General Court developed reasoning running manifestly counter to the content of the provisions of German law at issue or ascribed to one of those provisions a scope that it manifestly does not have in the light of other material in the file (see, to that effect, judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 81).
26


In accordance with the Court’s settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist when the action is lodged, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue to exist until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61 and the case-law cited).
28


Previously, in paragraph 27 of the judgment under appeal, the General Court noted, referring inter alia to the judgment of 24 October 2013, Deutsche Post v Commission (C‑77/12 P, not published, EU:C:2013:695, paragraphs 52 and 53), that a decision to initiate the formal investigation procedure in relation to a measure in the course of implementation and classified as ‘new aid’ entails independent legal effects, particularly as regards the suspension of that measure. It stated that such a decision necessarily alters the legal scope of the measure under consideration and the legal position of the recipient undertakings, particularly as regards the continued application of the measure. It also observed that after the adoption of such a decision there is at the very least a significant element of doubt as to the legality of the measure in the course of implementation which must lead the Member State to suspend its application and that such a decision may also be invoked before a national court called upon to draw all the appropriate conclusions arising from an infringement of the last sentence of Article 108(3) TFEU.
29


In that regard, it should be recalled that the Court of Justice has also held, in the judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755, paragraph 45) and in the order of the Court of 4 April 2014, Flughafen Lübeck (C‑27/13, not published, EU:C:2014:240, paragraph 27), that where, in accordance with Article 108(3) TFEU, the Commission has initiated a formal investigation procedure with regard to a measure which has not been notified and is in the course of implementation, a national court hearing an application for the cessation of the implementation of that measure and for the recovery of the sums already paid is required to adopt all the measures that are necessary in order to draw the appropriate conclusions from any infringement of the obligation to suspend the implementation of that measure. To that end, the national court may decide to suspend the implementation of the measure in question and order the recovery of the sums already paid. It may also decide to order interim measures in order to safeguard, first, the interests of the parties concerned and, secondly, the effectiveness of the Commission’s decision to initiate the formal investigation procedure.
40


As the General Court recalled in paragraph 43 of the judgment under appeal, in accordance with settled case-law classification as ‘State aid’ requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see, inter alia, judgment of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 24).
41


So far as concerns the condition relating to the selectivity of the advantage, which is a constituent factor in the concept of0 ‘State aid’ within the meaning of Article 107(1) TFEU, since this provision prohibits aid ‘favouring certain undertakings or the production of certain goods’, it is clear from the Court’s settled case-law, recalled in paragraphs 45 and 46 of the judgment under appeal, that the assessment of that condition requires it to be determined whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation. The concept of ‘State aid’ does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the overall structure of the system of which they form part (see judgments of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraphs 41 and 42; of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraphs 82 and 83; of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 74 and 75; and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 54 and 55).
48


It is, on the contrary, settled case-law that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects, and thus independently of the techniques used (judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87 and the case-law cited).
53


The examination of whether such a measure is selective is thus, in essence, coextensive with the examination of whether it applies to that set of economic operators in a non-discriminatory manner (see, to that effect, judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 53). The concept of selectivity, as the Advocate General states in point 75 of his Opinion, is thus linked to that of discrimination.
54


Secondly, as is also apparent from that case-law, that examination of selectivity must be carried out within the context of ‘a particular legal regime’. In order to determine whether a measure is selective, it should therefore be examined whether, within the context of a specified legal regime, that measure constitutes an advantage for certain undertakings over others which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation (judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56, and of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraph 36).
55


That examination therefore in principle requires prior definition of the reference framework within which the measure concerned fits. As the Advocate General argues in points 77 and 86 to 89 of his Opinion, this method is not limited solely to the examination of tax measures, the Court having merely observed that the determination of the reference framework is of particular importance in the case of tax measures since the very existence of an advantage may be established only when compared with ‘normal’ taxation (judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 56).
58


In the second place, contrary to the Commission’s contentions, a measure which benefits only one economic sector or some of the undertakings in that sector is not necessarily selective. It is selective, as follows from the reasoning set out in paragraphs 41 and 47 to 55 of the present judgment, only if, within the context of a particular legal regime, it has the effect of conferring an advantage on certain undertakings over others, in a different sector or the same sector, which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation.
60


In the third place, as follows from the reasoning set out in paragraphs 52 to 55 of the present judgment, determination of the set of undertakings which are in a comparable factual and legal situation depends on the prior definition of the legal regime in the light of whose objective it must, as the case may be, be examined whether the factual and legal situation of the undertakings favoured by the measure in question is comparable with that of those which are not.
61


In this regard, in paragraphs 32 and 51 of the judgment under appeal the General Court, in the exercise of its power to interpret national law, found — as is clear from paragraphs 16 to 21 of the present judgment — that, in accordance with Paragraph 43a(1) of the LuftVZO, the operator of an airport, exercising a power of its own, draws up the scale of airport fees applicable to that airport.
62


It is clear from that finding that, in the present instance, it is not Paragraph 43a(1) of the LuftVZO or other legislation applicable to all airports — from which the 2006 schedule might have derogated in favour of airlines using Lübeck Airport — that lays down the airport charges applicable to an airport, but the schedule adopted for this purpose by the airport operator itself in the exercise of a power limited to that airport. Accordingly, it is apparent that, as the Advocate General states in point 112 of his Opinion, the relevant reference framework for examining whether the 2006 schedule had the effect of favouring certain airlines over others which were in a comparable factual and legal situation was that of the regime applicable to Lübeck Airport alone.
63


Accordingly, the General Court did not err in law when, after delimiting in this way the legal regime that was relevant in the present instance, it held that the airlines serving other German airports were not in a situation comparable to that of the airlines using Lübeck Airport.
78


As the General Court pointed out in paragraph 42 of the judgment under appeal, review by the EU judicature of the legality of a decision to initiate the formal investigation procedure, where the applicant challenges the Commission’s assessment of a measure as constituting State aid, is limited to ascertaining whether or not the Commission has made a manifest error of assessment (see, to that effect, judgment of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, EU:C:2011:497, paragraph 61).