British Aggregates Association v Commission of the European Communities and United Kingdom.
Date: 2008-12-22
26. According to 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, Case 25/62 Plaumann  v Commission  [1963] ECR 95, at p. 107; Cook  v Commission , paragraph 20; Matra  v Commission , paragraph 14; Case C‑78/03 P Commission  v Aktionsgemeinschaft Recht und Eigentum  [2005] ECR I‑10737, paragraph 33; and Joined Cases C‑75/05 P and C‑80/05 P Germany and Others  v Kronofrance [2008] ECR I‑0000, paragraph 36).
27. As the present action concerns 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 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, 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 88(2) EC. 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 EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (see Cook  v Commission , paragraph 22; Matra  v Commission , paragraph 16; Case C-367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 38; Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 34; and Germany and Others  v Kronofrance , paragraph 37).
28. It follows that, where, without initiating the formal investigation procedure under Article 88(2) EC, the Commission finds, on the basis of Article 88(3) EC, 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 Community 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 88(2) EC is declared to be admissible where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision ( Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 35 and the case-law cited there, and Germany and Others  v Kronofrance , paragraph 38).
29. The Court has had occasion to observe that such parties concerned are any persons, undertakings or associations whose interests might be affected by the granting of aid, that is, in particular competing undertakings and trade associations ( Commission  v Sytraval and Brink’s France , paragraph 41; Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 36; and Germany and Others  v Kronofrance , paragraph 39).
30. On the other hand, if the applicant calls into question the merits of the decision appraising the aid as such, the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 88(2) EC cannot suffice for the action to be considered admissible. It must then demonstrate that it enjoys a particular status within the meaning of Plaumann  v Commission . That would in particular apply where the applicant’s market position would be substantially affected by the aid to which the decision at issue relates (Case 169/84 Cofaz and Others  v Commission  [1986] ECR 391, paragraphs 22 to 25; Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 37; and Germany and Others  v Kronofrance , paragraph 40).
31. Contrary to the view taken by the Commission, the general scope of the contested decision, which results from the fact that it is designed to authorise a tax scheme which applies to a category of operators defined in a general and abstract manner, is not such as to constitute a barrier to the application of the case-law cited above.
32. The Court has ruled on numerous occasions that the fact that a measure is, by its nature and scope, a provision of general application inasmuch as it applies to the traders concerned in general, does not of itself prevent it being of individual concern to some of them (see, to that effect, Case C-309/89 Codorníu  v Council  [1994] ECR I‑1853, paragraph 19, and Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187  v Commission  [2006] ECR I‑5479, paragraph 58).
33. With regard to the admissibility of an action seeking the annulment of a general aid scheme, the Court has, in particular, recently ruled that an association set up to promote the collective interests of a category of persons, and which sought annulment of the decision contested in the substantive proceedings, could be regarded as being individually concerned to the extent to which ‘the position of its members in the market [was] substantially affected’ by the aid scheme which was the subject of the contested decision (see Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 70).
47. It must be pointed out that, with regard to the determination of a ‘significant effect on the position’ of the appellant on the market in question, the Court has had occasion to clarify that the mere fact that a measure 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, inter alia, Case C‑525/04 P Spain v Lenzing  [2007] ECR I‑9947, paragraph 32).
48. 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, Spain v Lenzing , paragraph 33).
53. Contrary to what the Commission asserts, it does not follow from the Court’s case-law that a special status of this kind, which distinguishes a ‘person other than the persons addressed’, within the meaning of Plaumann  v Commission , from any other economic operator, must necessarily 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. 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 ( Spain  v Lenzing , paragraphs 34 and 35).
55. However, as has been pointed out in paragraph 35 of the present judgment, it follows from well-established case-law that, irrespective of whether the aid measure in question is individual or general in nature, an applicant must, when bringing into question the soundness of the decision assessing the aid as such, demonstrate that he has a ‘special status’ within the meaning of Plaumann  v Commission , which will be the case, inter alia, where the position of the applicant on the market is substantially affected by the aid which is the subject of the decision in question (see, inter alia, Commission  v Aktionsgemeinschaft Recht und Eigentum , paragraph 70).
81. With a view to addressing the grounds raised by the appellant, it is appropriate to bear in mind the Court’s case-law on the assessment of the condition of selectivity, which is a constituent factor in the concept of State aid (Case C‑88/03 Portugal  v Commission  [2006] ECR I‑7115, paragraph 54).
82. Article 87(1) EC prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid. In order to determine whether a measure is selective, it is appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation (see, inter alia, Case C‑409/00 Spain  v Commission  [2003] ECR I‑1487, paragraph 47; Portugal  v Commission , paragraph 54; and Joined Cases C‑428/06 to C‑434/06 UGT-Rioja and Others  [2008] ECR I‑0000, paragraph 46).
83. According to equally well-established case-law, 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, to that effect, inter alia, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraph 42, and Portugal  v Commission , paragraph 52).
84. The Court has also held on numerous occasions that the objective pursued by State measures is not sufficient to exclude those measures outright from classification as ‘aid’ for the purposes of Article 87 EC (see, inter alia, Case C‑241/94 France  v Commission  [1996] ECR I‑4551, paragraph 21; Case C‑342/96 Spain  v Commission  [1999] ECR I-2459, paragraph 23; and Case C‑75/97 Belgium  v Commission , paragraph 25).
85. Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (Case C‑56/93 Belgium  v Commission [1996] ECR I‑723, paragraph 79; Case C-241/94 France  v Commission , paragraph 20; Case C-75/97 Belgium  v Commission , paragraph 25; and Case C‑409/00 Spain  v Commission , paragraph 46).
88. That conclusion is all the more cogent in the light of paragraph 128 of the judgment under appeal, to the effect that potential inconsistencies in the definition of the scope of the AGL in relation to the environmental objectives pursued may be justified, even if they are based on objectives unrelated to environmental protection, such as the desire to maintain the international competitiveness of certain sectors. Consequently, the distinction made as between undertakings also cannot be justified by the nature or general scheme of the system of which it forms part (see, to that effect, inter alia Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraph 54).
89. The Court of First Instance also erred in distinguishing, in paragraphs 120 and 121 of the judgment under appeal, the present case from the facts which gave rise to the judgment in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  on the ground that the latter concerned, not the definition of the material scope of an environmental levy, as in the present case, but the partial exemption from payment of such a levy which was granted to a certain category of undertakings. Article 87(1) EC defines State interventions on the basis of their effects, and thus independently of the techniques used.
91. It should also be borne in mind that protection of the environment constitutes one of the essential objectives of the Community. In that regard, Article 2 EC states that the Community has, as one of its tasks, to promote ‘a high level of protection and improvement of the quality of the environment’ and, to that end, Article 3(1)(l) EC provides for the establishment of a ‘policy in the sphere of the environment’ (see Case 240/83 ADBHU  [1985] ECR 531, paragraph 13; Case 302/86 Commission  v Denmark  [1988] ECR 4607, paragraph 8; Case C‑213/96 Outokumpu  [1998] ECR I‑1777, paragraph 32; and Case C‑176/03 Commission  v Council  [2005] ECR I‑7879, paragraph 41).
92. However, the need to take account of requirements relating to environmental protection, however legitimate, cannot justify the exclusion of selective measures, even specific ones such as environmental levies, from the scope of Article 87(1) EC (see, to that effect, inter alia Case C‑409/00 Spain v Commission , paragraph 54), as account may in any event usefully be taken of the environmental objectives when the compatibility of the State aid measure with the common market is being assessed pursuant to Article 87(3) EC.
96. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, inter alia, Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 51, and Case C‑266/06 P Evonik Degussa  v Commission and Council , judgment of 22 May 2008, not published in the ECR, paragraph 72).
97. The Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that that evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, General Motors  v Commission , paragraph 52, and Evonik Degussa  v Commission and Council , paragraph 73).
98. It should, moreover, be pointed out that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, General Motors  v Commission , paragraph 54, and Evonik Degussa  v Commission and Council , paragraph 74).
111. According to the Court’s case-law, however, State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Community Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC (see, inter alia, France  v Ladbroke Racing and Commission , paragraph 25).
112. As the Advocate General noted in point 144 of his Opinion, there is nothing to justify the Commission having, when taking a decision under Article 88(3) EC, a ‘broad discretion’ in regard to the classification of a measure as ‘State aid’ for the purposes of Article 87(1) EC, which would mean that, contrary to what is apparent from the case-law cited in the previous paragraph of this judgment, the judicial review of the Commission’s assessment was not in principle comprehensive.
113. This is all the more true in view of the fact that, according to settled case-law, if the Commission is unable to conclude, following an initial examination in the context of the procedure under Article 88(3) EC, that the State measure in question either is not ‘aid ‘ within the meaning of Article 87(1) EC or, if classified as aid, is compatible with the Treaty, or where that procedure 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 initiate the procedure under Article 88(2) EC, ‘without having any discretion in that regard’ (see, to that effect, inter alia, Matra  v Commission , paragraph 33, and Commission v Sytraval and Brink’s France , paragraph 39). As the Court of First Instance pointed out in paragraph 165 of the judgment under appeal, that duty is, moreover, expressly confirmed by the provisions of Article 4(4), in conjunction with Article 13(1), of Regulation No 659/1999.
114. Admittedly, the Court has also held that judicial review is limited with regard to whether a measure comes within the scope of Article 87(1) EC, in a case where the appraisals by the Commission are technical or complex in nature (see, inter alia, France  v Ladbroke Racing and Commission , paragraph 25; Matra  v Commission , paragraphs 29 and 30; Case C-56/93 Belgium  v Commission , paragraphs 10 and 11; and Spain  v Lenzing , paragraph 56). However, the Court of First Instance did not establish that this was the case here.
115. Consequently, as BAA has correctly submitted, by failing to carry out a comprehensive review of the Commission’s assessment as to whether the AGL comes within the scope of Article 87(1) EC, the Court of First Instance committed an error of law which vitiates in its entirety the analysis of the substance of the contested decision.
121. It is first of all appropriate to recall that, according to well-established case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑240/03 P Comunità montana della Valnerina  v Commission  [2006] ECR I‑731, paragraph 105).
122. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state reasons under those provisions. In reality, such an appeal amounts to no more than a request for a re-examination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice (see, inter alia, Comunità montana della Valnerina  v Commission , paragraph 106).
123. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, inter alia, Comunità montana della Valnerina  v Commission , paragraph 107).
129. If one were to assume that the Court of First Instance substituted its own reasoning for that of the contested decision when it referred, in paragraph 124 of the judgment under appeal, to the ‘polluter pays’ principle, and in justifying, in paragraphs 135 and 136 thereof, the taxation of products which could not be replaced by alternatives in the light of the objective ‘which seeks to internalise the environmental costs of the production of virgin aggregates’, the reproach that the Court of First Instance developed, in paragraphs 135 and 136 of the judgment under appeal, its own logic with regard to the nature and general scheme of the AGL cannot in any event be accepted in so far as the rejection of the plea raised at first instance appears to be well founded on other grounds (see, inter alia, Commission v Sytraval and Brink’s France , paragraph 47).
141. In this regard, it should be noted that, in reviewing the legality of acts under Article 230 EC, the Court of Justice and the Court of First Instance have jurisdiction in actions brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any rule of law relating to its application, or misuse of powers. Article 231 EC provides that, if the action is well founded, the act concerned must be declared void. The Court of Justice and the Court of First Instance cannot under any circumstances substitute their own reasoning for that of the author of the contested act (see, inter alia, Case C‑164/98 P DIR International Film and Others  v Commission  [2000] ECR I‑447, paragraph 38).
142. Although, in proceedings for annulment, the Court of First Instance may be led to interpret the reasoning of the contested measure in a manner which differs from that of its author, and even, in certain circumstances, to reject the latter’s formal statement of reasons, it cannot do so where there is no material factor to justify such a course of action ( DIR International Film and Others  v Commission , paragraph 42).
172. So far as concerns the obligation on the Commission to provide reasons, it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Commission  v Sytraval and Brink’s France , paragraph 63).