European Commission v Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG.
Date: 2011-05-24
43. In the first place, as regards the plea alleging breach of the conditions laid down in the fourth paragraph of Article 230 EC, it should be made clear at the outset that Article 4 of Regulation No 659/1999 provides for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether the aid notified is compatible with the common market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts.
44. If, following the preliminary examination, the Commission finds that, notwithstanding the fact that the measure notified falls within the scope of Article 87(1) EC, it does not raise any doubts as to its compatibility with the common market, the Commission is to adopt a decision not to raise objections under Article 4(3) of Regulation No 659/1999.
45. Where the Commission adopts a decision not to raise objections, it declares not only that the measure is compatible with the common market, but also – by implication – that it refuses to initiate the formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation No 659/1999.
46. If, following the preliminary examination, it finds that the measure notified raises doubts as to its compatibility with the common market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation No 659/1999, a decision initiating the formal investigation procedure under Article 88(2) EC and Article 6(1) of that regulation. Under the latter provision, such a decision is to call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which must not as a rule exceed one month.
47. In the present case, the contested decision is a decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, the lawfulness of which depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of Regulation No 659/1999 can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the European Union judicature the decision not to raise objections (see, to that effect, Case C‑78/03 P Commission  v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 35 and the case-law cited; Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑10515, paragraph 28; and Case C‑319/07 P 3F  v Commission  [2009] ECR I‑5963, paragraph 31 and the case-law cited).
48. Accordingly, the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a decision not to raise objections.
55. With regard to the first and third pleas, the General Court thus rightly pointed out in paragraph 81 of the judgment under appeal that, according to settled case-law, it was not for it, the General Court, to interpret an action challenging exclusively the merits of an aid assessment decision as such as seeking, in reality, to ensure the respect of the procedural rights available to the applicant under Article 88(2) EC, where the applicant has not expressly raised a plea to that effect. In such circumstances, the interpretation of the plea would be tantamount to re-defining the subject-matter of the action (see, to that effect, the judgment of 29 November 2007 in Case C‑176/06 P Stadtwerke Schwäbisch Hall and Others  v Commission , paragraph 25).
59. Where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, alleging that the Commission thereby acted in breach of the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments does nothing, however, to bring about a change in the subject-matter of the action or in the conditions for its admissibility (see, to that effect, 3F  v Commission , paragraph 35). On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999.
63. Under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of persons (see, to that effect, Case 323/82 Intermills  v Commission  [1984] ECR 3809, paragraph 16).
64. As a consequence, that provision does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid, but which requires the same raw material for its production process, can be categorised as an interested party, provided that that undertaking demonstrates that its interests could be adversely affected by the grant of the aid.
65. For that purpose, it is necessary for that undertaking to establish, to the requisite legal standard, that the aid is likely to have a specific effect on its situation (see, to that effect, 3F  v Commission , paragraph 33).