Georgsmarienhütte GmbH and Others v Bundesrepublik Deutschland.
Date: 2018-07-25
14


It should be noted that, in paragraph 17 of that judgment, delivered in a case bearing similarities to the case in the main proceedings, the Court in essence held that, in particular for reasons of legal certainty, it is not possible for a recipient of State aid — which was the subject of a Commission decision that was directly addressed solely to the Member State from which that recipient comes — who could undoubtedly have challenged that decision on the basis of Article 263 TFEU and who allowed the mandatory period provided for in the sixth paragraph of that provision to lapse, effectively to call into question the legality of that decision before the national courts, in an action brought against the national measures implementing that decision (see, also, judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 28).
15


In particular, the Court held that, in such a case, to find otherwise would enable the recipient of the aid to overcome the definitive nature which a decision necessarily assumes, by virtue of the principle of legal certainty, once the time limit laid down for bringing proceedings has passed (judgments of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 28 and the case-law cited).
17


Thus, the possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in a measure of the European Union, which constitutes the basis of a national decision taken concerning him, presupposes either that he has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that he has not done so, as a result of not having an undoubted right to bring such an action (see, to that effect, judgments of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 46 and 48; of 17 February 2011, Bolton Alimentari, C‑494/09, EU:C:2011:87, paragraphs 22 and 23; and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 67 and the case-law cited).
23


Moreover, it has been held that the recipient of State aid who brings, within the period laid down in the sixth paragraph of Article 263 TFEU, an action for annulment before the General Court against a Commission decision declaring that aid incompatible with the internal market cannot be regarded as seeking to circumvent the definitive nature of that decision on the ground that it is also contesting the validity of that decision before the referring court (see, to that effect, judgment of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 29).
24


It should again be recalled that, where the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to the Commission decision, stay its proceedings pending final judgment in the action for annulment before the Courts of the European Union, unless it takes the view that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted (judgment of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 57).
26


In the case in the main proceedings, it is therefore appropriate to examine, in the light of the considerations set out in paragraphs 14 to 19 of the present judgment, whether the applicants in the main proceedings undoubtedly had standing to bring an action for annulment of the contested decision before the General Court, on the basis of Article 263 TFEU (see, to that effect, judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 66 and 67, and the case-law cited), irrespective of whether the applicants brought their action before the national courts before the expiry of the period prescribed for bringing an action before the General Court.
30


Consequently, the applicants in the main proceedings must be regarded as directly concerned by that decision (see, to that effect, judgments of 19 October 2000, Italy and Sardegna Lines v Commission, C‑15/98 and C‑105/99, EU:C:2000:570, paragraph 36; of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraphs 48 and 49; and of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraphs 60 and 61).
31


Secondly, it should be recalled that 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 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, p. 107, and of 29 April 2004, Italy v Commission, C‑298/00 P, EU:C:2004:240, paragraph 36 and the case-law cited).
32


In particular, it has been held that, where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 54 and the case-law cited).
33


Thus, the actual beneficiaries of individual aid, granted under an aid scheme, of which the Commission has ordered the recovery are, accordingly, individually concerned within the meaning of the fourth paragraph of Article 263 TFEU. The recovery obligation imposed by a Commission decision in respect of an aid scheme sufficiently singles out all the beneficiaries of the scheme in question, in that they are exposed, as soon as that decision is adopted, to the risk that the benefits which they have received will be recovered, and their legal position is thus affected (see, to that effect, judgments of 9 June 2011, Comitato 'Venezia vuole vivere' and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 53 and 56, and of 21 December 2011, A2A v Commission, C‑320/09 P, not published, EU:C:2011:858, paragraphs 58 and 59).
36


Accordingly, the applicants in the main proceedings are not only concerned by the contested decision in that they are EEIs forming part of the energy sector affected by the aid scheme examined in that decision. They are individually concerned as actual recipients of the aid granted under that scheme, of which the Commission has ordered the recovery (see, to that effect, judgments of 19 October 2000, Italy and Sardegna Lines v Commission, C‑15/98 and C‑105/99, EU:C:2000:570, paragraph 34, and of 29 April 2004, Italy v Commission, C‑298/00 P, EU:C:2004:240, paragraph 39).
43


In the light of the foregoing considerations, it must be held that, in so far as the applicants in the main proceedings were undoubtedly entitled to bring an action for annulment under the fourth paragraph of Article 263 TFEU against the contested decision, but did not exercise that right, they cannot rely on the invalidity of that decision in support of their actions before the national court against the national measures implementing that decision.