William Cook plc v Commission of the European Communities.
Date: 1993-05-19
20 The Court has consistently held that persons other than those to whom a decision is addressed may claim to be concerned within the meaning of the second paragraph of Article 173 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 (Case 25/62 Plaumann v Commission [1963] ECR 95).
22 As the Court pointed out in its judgment in Case 84/82 (Germany v Commission [1984] ECR 1451, at paragraphs 11 and 13), the preliminary stage of the procedure for reviewing aids under Article 93(3) of the Treaty, 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 examination under Article 93(2) of the Treaty. It is only in connection with the latter examination, 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.
23 Where, without initiating the procedure under Article 93(2), the Commission finds, on the basis of Article 93(3), that an 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 by the Commission before the Court.
24 The parties concerned, within the meaning of Article 93(2) of the Treaty, have been defined by the Court as the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (Case 323/82 Intermills v Commission [1984] ECR 3809, at paragraph 16).
25 In this case, whilst the Commission and the Spanish Government deny that the distortions of competition resulting from the contested aids are substantial, they do not dispute that Cook, which, like the undertaking in receipt of the aid, produces GET parts, is a party concerned for the purposes of Article 93(2) of the Treaty.
26 In that capacity, consequently, Cook must be considered to be directly and individually concerned by Commission Decision NN 12/91. It is therefore entitled to seek the annulment of that decision on the basis of the second paragraph of Article 173 of the Treaty.
Substance
29 As the Court pointed out in its abovementioned judgment in Germany v Commission (at paragraph 13), the procedure under Article 93(2) is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the common market. The Commission may restrict itself to the preliminary examination under Article 93(3) when taking a decision in favour of an aid only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to obtain all the requisite opinions and for that purpose to initiate the procedure provided for in Article 93(2).
30 Although, contrary to Cook' s contention, the obligation to initiate the procedure under Article 93(2) of the Treaty does not depend on the circumstances in which the aid is notified or on the provision of Article 92 of the Treaty which is applied, it is for the Commission to determine, subject to review by the Court, on the basis of the factual and legal circumstances of the case, whether the difficulties involved in assessing the compatibility of the aid warrant the initiation of that procedure.
31 Accordingly, it is necessary to ascertain whether, in this case, the assessments on which the Commission relied, and more specifically that relating to the absence of overcapacity in the sprockets and GET parts sub-sector, gave rise to such difficulties as to justify the initiation of that procedure.
38 It follows that, since the Commission sought to rely on the absence of overcapacity in the sub-sector in question, it should have initiated the procedure under Article 93(2) of the Treaty in order to ascertain, after obtaining all the requisite opinions, whether its assessment ° which gave rise to serious difficulties ° was correct.