Compagnie française de l'azote (Cofaz) SA and others v Commission of the European Communities.
Date: 1986-01-28
16 WITH REGARD TO THE QUESTION WHETHER THE CONTESTED DECISION IS OF DIRECT CONCERN TO THE APPLICANTS , THE COMMISSION EMPHASIZES THAT THE MERE FACT THAT THEY ARE COMPETING WITH UNDERTAKINGS ALLEGEDLY IN RECEIPT OF STATE AID DOES NOT CONSTITUTE A SPECIFIC CIRCUMSTANCE ENABLING THEM TO CLAIM THAT THE DECISION AFFECTS THEIR POSITION ON THE MARKET . IN THE COMMISSION ' S VIEW , HOWEVER , A SPECIFIC CIRCUMSTANCE OF THAT KIND IS NECESSARY , ACCORDING TO THE CASE-LAW OF THE COURT , IN ORDER FOR PROCEEDINGS UNDER ARTICLE 173 TO BE BROUGHT . MOREOVER , THE COMPETITIVE POSITION OF THE APPLICANTS IS DIRECTLY DEPENDENT ON THE GAS TARIFFS CHARGED BY THEIR SUPPLIER , NAMELY GAZ DE FRANCE , AND NOT ON THE GAS TARIFFS WHICH GASUNIE CHARGES TO NETHERLANDS PRODUCERS .
22 IT IS CLEAR FROM A CONSISTENT LINE OF DECISIONS OF THE COURT 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 ( JUDGMENT OF 15 JULY 1963 IN CASE 25/62 PLAUMANN V COMMISSION ( 1963 ) ECR 95 ).
23 MORE PARTICULARLY , AS REGARDS THE CIRCUMSTANCES REFERRED TO IN THAT JUDGMENT , THE COURT HAS REPEATEDLY HELD THAT WHERE A REGULATION ACCORDS APPLICANT UNDERTAKINGS PROCEDURAL GUARANTEES ENTITLING THEM TO REQUEST THE COMMISSION TO FIND AN INFRINGEMENT OF COMMUNITY RULES , THOSE UNDERTAKINGS SHOULD BE ABLE TO INSTITUTE PROCEEDINGS IN ORDER TO PROTECT THEIR LEGITIMATE INTERESTS ( JUDGMENTS OF 25 OCTOBER 1977 IN CASE 26/76 METRO V COMMISSION ( 1977 ) ECR 1875 , 5 OCTOBER 1983 IN CASE 191/82 FEDIOL V COMMISSION ( 1983 ) ECR 2913 , AND 11 OCTOBER 1983 IN CASE 210/81 DEMO-STUDIO SCHMIDT V COMMISSION ( 1983 ) ECR 3045 ).
24 IN ITS JUDGMENT OF 20 MARCH 1985 IN CASE 264/82 ( TIMEX CORPORATION V COUNCIL AND COMMISSION ( 1985 ) ECR 849 ) THE COURT POINTED OUT THAT IT WAS NECESSARY TO EXAMINE IN THAT REGARD THE PART PLAYED BY THE UNDERTAKING IN THE ADMINISTRATIVE PROCEEDINGS . THE COURT ACCEPTED AS EVIDENCE THAT THE MEASURE IN QUESTION WAS OF CONCERN TO THE UNDERTAKING , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY , THE FACT THAT THE UNDERTAKING WAS AT THE ORIGIN OF THE COMPLAINT WHICH LED TO THE OPENING OF THE INVESTIGATION PROCEDURE , THE FACT THAT ITS VIEWS WERE HEARD DURING THAT PROCEDURE AND THE FACT THAT THE CONDUCT OF THE PROCEDURE WAS LARGELY DETERMINED BY ITS OBSERVATIONS .
25 THE SAME CONCLUSIONS APPLY TO UNDERTAKINGS WHICH HAVE PLAYED A COMPARABLE ROLE IN THE PROCEDURE REFERRED TO IN ARTICLE 93 OF THE EEC TREATY PROVIDED , HOWEVER , THAT THEIR POSITION ON THE MARKET IS SIGNIFICANTLY AFFECTED BY THE AID WHICH IS THE SUBJECT OF THE CONTESTED DECISION . ARTICLE 93 ( 2 ) RECOGNIZES IN GENERAL TERMS THAT THE UNDERTAKINGS CONCERNED ARE ENTITLED TO SUBMIT THEIR COMMENTS TO THE COMMISSION BUT DOES NOT PROVIDE ANY FURTHER DETAILS .
28 IT IS NOT FOR THE COURT , AT THIS STAGE OF THE PROCEDURE , WHEN IT IS CONSIDERING WHETHER THE APPLICATION IS ADMISSIBLE , TO MAKE A DEFINITIVE FINDING ON THE COMPETITIVE RELATIONSHIP BETWEEN THE APPLICANTS AND THE NETHERLANDS UNDERTAKINGS . IT IS SUFFICIENT TO NOTE THAT THE APPLICANTS HAVE ADDUCED PERTINENT REASONS TO SHOW THAT THE COMMISSION ' S DECISION MAY ADVERSELY AFFECT THEIR LEGITIMATE INTERESTS BY SERIOUSLY JEOPARDIZING THEIR POSITION ON THE MARKET IN QUESTION .
30 AS REGARDS THE QUESTION WHETHER THE COMMISSION ' S DECISION TO TERMINATE THE PROCEDURE IS OF DIRECT CONCERN TO THE APPLICANTS , IT IS SUFFICIENT TO OBSERVE THAT THE DECISION HAS LEFT INTACT ALL THE EFFECTS OF THE TARIFF SYSTEM SET UP , WHILST THE PROCEDURE SOUGHT BY THE APPLICANTS WOULD LEAD TO THE ADOPTION OF A DECISION TO ABOLISH OR AMEND THAT SYSTEM . IN THOSE CIRCUMSTANCES , IT MUST BE HELD THAT THE CONTESTED DECISION IS OF DIRECT CONCERN TO THE APPLICANTS .