1 By its appeal, the Kingdom of the Netherlands seeks to have set aside the judgment of the General Court of the European Union of 15 November 2023, European Gaming and Betting Association v Commission (T‑167/21, ‘the judgment under appeal’, EU:T:2023:723), by which the General Court annulled Commission Decision C(2020) 8965 final of 18 December 2020 in Case SA.44830 (2016/FC) - Netherlands - Prolongation of gambling licences in the Netherlands (‘the decision at issue’).
2 Article 1(h) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) provides: ‘For the purposes of this Regulation, the following definitions shall apply: …
3 Article 4 of that regulation, entitled ‘Preliminary examination of the notification and decisions of the Commission’, provides, in paragraphs 3 and 4: ‘3. Where the [European] Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the internal market of a notified measure, in so far as it falls within the scope of Article 107(1) TFEU, it shall decide that the measure is compatible with the internal market (“decision not to raise objections”). The decision shall specify which exception under the [FEU Treaty] has been applied. 4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the internal market of a notified measure, it shall decide to initiate proceedings pursuant to Article 108(2) TFEU (“decision to initiate the formal investigation procedure”).’
4 Article 15 of that regulation, entitled ‘Decisions of the Commission’, provides, in paragraph 1: ‘The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 9. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.’
5 As set out in Article 24, headed ‘Rights of interested parties’, of the regulation: ‘1. Any interested party may submit comments pursuant to Article 6 following a Commission decision to initiate the formal investigation procedure. Any interested party which has submitted such comments and any beneficiary of individual aid shall be sent a copy of the decision taken by the Commission pursuant to Article 9. 2. Any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been set out in an implementing provision referred to in Article 33 and shall provide the mandatory information requested therein. Where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed 1 month. If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. The Commission shall inform the Member State concerned when a complaint has been deemed to have been withdrawn. The Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant. 3. At its request, any interested party shall obtain a copy of any decision pursuant to Articles 4 and 9, Article 12(3) and Article 13.’
6 According to paragraph 115 of the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1; ‘the notice on the notion of State aid’): ‘An advantage can be conferred on undertakings other than those to which State resources are directly transferred (indirect advantage). … A measure can also constitute both a direct advantage to the recipient undertaking and an indirect advantage to other undertakings, for instance, undertakings operating at subsequent levels of activity. … The direct recipient of the advantage can be either an undertaking or an entity (natural or legal person) not engaged in any economic activity. …’
7 Paragraph 116 of that notice provides: ‘Such indirect advantages should be distinguished from mere secondary economic effects that are inherent in almost all State aid measures (for example through an increase of output). For this purpose, the foreseeable effects of the measure should be examined from an ex ante point of view. An indirect advantage is present if the measure is designed in such a way as to channel its secondary effects towards identifiable undertakings or groups of undertakings. This is the case, for example, if the direct aid is, de facto or de jure, made conditional on the purchase of goods or services produced by certain undertakings only (for example only undertakings established in certain areas). …’
8 The background to the dispute, as set out in paragraphs 2 to 23 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
9 European Gaming and Betting Association (EGBA) is a non-profit association whose members are European online gaming and betting operators.
10 The Netherlands legislation on gambling is based on a system of exclusive authorisations, or licences, under which the organisation or promotion of gambling is prohibited unless an administrative authorisation has been issued to that effect.
11 On 8 March 2016, EGBA lodged a complaint with the Commission under Article 24 of Regulation 2015/1589 concerning aid that was allegedly unlawful and incompatible with the internal market and granted by the Kingdom of the Netherlands to several entities operating lotteries and other betting and gambling activities in that Member State.
12 The complaint concerned, first, a general policy rule adopted by the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands) on 7 October 2014 concerning the extension, until 1 January 2017, of the licences issued for sports betting, horse race betting, lottery and casino licences to licence holders. Second, it concerned the decisions adopted by the Nederlandse Kansspelautoriteit (Netherlands Gambling Authority, Netherlands) on 25 November 2014 implementing that rule by renewing six expiring licences for charity lotteries, sports betting, the instant lottery, the Lotto, and horse race betting (together, ‘the measure at issue’).
13 In its complaint, EGBA alleged, in essence, that, pursuant to the measure at issue, the Netherlands authorities had granted State aid to those licence holders. It submitted that that aid had been granted in the form of an extension of the existing licences on an exclusive basis without the Netherlands authorities having requested payment of remuneration at market rate and without them having organised an open, transparent and non-discriminatory procedure for the award of the licences.
14 In 2016, the Commission forwarded a non-confidential version of the complaint together with a request for information to the Netherlands authorities, which replied. In the same year, EGBA submitted further observations.
15 On 30 May 2017, the Commission informed EGBA of the outcome of its preliminary assessment, according to which the extension of the licences of the incumbent licence holders on an exclusive basis did not involve the transfer of State resources and, therefore, the measure at issue did not constitute State aid within the meaning of Article 107(1) TFEU.
16 In 2017, EGBA disputed the Commission’s assessment and provided further information. In the same year, the Netherlands authorities replied to a request for further information from the Commission.
17 On 19 February 2019, the Nederlandse Senaat (Netherlands Senate, Netherlands) adopted a new law on gambling, which entered into force on 1 April 2021. By letter of 5 April 2019, EGBA sent the Commission its observations on the adoption of that law and stated that the adoption of that law had neither altered nor undone the unlawfulness of the State aid complained of.
18 By letter of 27 June 2019, the Commission informed EGBA of its preliminary conclusion that the extension of the relevant exclusive licences did not confer an advantage on the incumbent licence holders and that, therefore, the measure at issue did not constitute State aid within the meaning of Article 107(1) TFEU.
19 The procedure was closed by the adoption of the decision at issue, referred to in the Official Journal of the European Union of 15 January 2021 (OJ 2021 C 17, p. 1), in which the Commission found that the measure at issue did not confer an advantage on its recipients and therefore did not constitute State aid within the meaning of Article 107(1) TFEU.
20 More specifically, the Commission began by observing that, under Article 1(1)(a) of the Wet houdende nadere regelen met betrekking tot kansspelen (Law containing further rules on gambling) of 10 December 1964 (Stb. 1964, No 483), the offering of gambling activities was prohibited in the Netherlands unless a licence had been granted under that law. Under Article 3 of that law, those licences could be granted only if the revenue generated by the gambling activities was paid to organisations acting in the common interest.
21 Next, the Commission stated that Article 2(b) of the Besluit tot vaststelling van de algemene maatregel van bestuur, bedoeld in artikel 6 van de Wet op de kansspelen (Kansspelenbesluit) (Decree establishing the general administrative measure referred to in Article 6 of the Law on Gambling (Gambling Decree)) of 1 December 1997 (Stb. 1997, No 616) provided that gaming operators which had obtained a licence under the Law on Gambling were required to remit the revenue generated by the sale of participation tickets to the beneficiaries indicated in the licences and that that remittance was required to be at least 50% of the nominal value of the participation tickets sold.
22 Last, the Commission found that the relevant licence holders were required to pay all the proceeds of their gambling activities, namely their revenue after deducting the expenditure relating to the prizes awarded and reasonable costs, to bodies that serve the common interest and, therefore, those licence holders could not make a profit or could only make a profit that was not higher than a reasonable profit. It also took the view that the financial data for those licence holders for the 2015 to 2016 period, provided by the Netherlands authorities, confirmed that analysis.
23 By application lodged at the Registry of the General Court on 29 March 2021, EGBA brought an action for annulment of the decision at issue.
24 In support of its action, EGBA put forward two pleas in law, alleging, first, infringement of its procedural rights by the Commission’s refusal to initiate the formal investigation procedure, while the preliminary examination for the purposes of Article 108(3) TFEU (‘the preliminary examination’) did not eliminate all doubts as to the existence of State aid, and, second, manifest error of assessment in that the Commission had found that the measure at issue did not grant an advantage within the meaning of Article 107(1) TFEU to the licence holders.
25 By its first plea, divided into three parts, EGBA submitted that the Commission had infringed its procedural rights by not initiating the formal investigation procedure while the preliminary examination did not eliminate all doubts as to the existence of State aid. The parts of the plea are based on, first, the length and circumstances of the preliminary examination; second, a significant shift in the Commission’s analysis in the course of the preliminary examination; and, third, the claim that the Commission had been wrong to find, in the decision at issue, that no doubts persisted as to whether the measure at issue conferred an advantage on licence holders.
26 After setting out the applicable principles, the General Court considered it appropriate to begin by examining the third part of the first plea, containing, in essence, two complaints; the first complaint alleged that an advantage had been conferred on the licence holders and the second claimed that no assessment had been carried out as to whether the licences at issue conferred an indirect advantage on the bodies to which the holders of those licences had to remit part of their proceeds generated by gambling activities.
27 The General Court first analysed the second complaint of the third part of the first plea and upheld that third part of the plea, in so far as it concerned that complaint, and annulled the decision at issue.
28 By its appeal, the Kingdom of the Netherlands claims that the Court should: - set aside the judgment under appeal; - refer the case back to the General Court; and - order EGBA to pay the costs.
29 EGBA contends that the Court should: - declare the appeal inadmissible; - in the alternative, dismiss the appeal; and - order the Kingdom of the Netherlands to pay the costs.
30 In support of its appeal, the Kingdom of the Netherlands raises a single ground of appeal, alleging infringement of Article 1(h), Article 4(3) and (4) and Article 24 of Regulation 2015/1589 and breach of the obligation to state reasons. That single ground of appeal is divided into four parts. The first part of the ground of appeal alleges that the General Court should have declared inadmissible EGBA’s complaint alleging indirect State aid to charities. The second part alleges that the General Court failed to fulfil its obligation to state reasons when examining the complaint alleging indirect State aid to charities. The third part alleges incorrect application of the judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology (C‑57/19 P, ‘the judgment in Tempus’, EU:C:2021:663), and Article 4(3) and (4) of Regulation 2015/1589, read in conjunction with Article 24 of that regulation. The fourth part alleges failure to have regard for the concept of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589.
31 EGBA submits that the appeal is inadmissible because it infringes Articles 36 to 42 of the Rules of Procedure of the Court of Justice. EGBA claims that the appeal does not fall within the exceptions set out in Article 38(4) of the Rules of Procedure, under which a Member State is entitled to use its official language instead of the language of the case before the General Court, which was English in that case.
32 In that regard, it is apparent from the second and third paragraphs of Article 56 of the Statute of the Court of Justice of the European Union that, except in cases of disputes between the European Union and its servants, Member States may appeal against a final decision of the General Court, even if they did not intervene in the proceedings before the General Court, and, in that case, those Member States are in an identical position to those of States which intervened at first instance.
33 If that rule applies to the Member States which are appellants before the Court of Justice and which were not interveners in the proceedings before the General Court, it applies a fortiori to the Member States which intervened in those proceedings.
34 Under Article 38(4) of the Rules of Procedure of the Court of Justice, Member States intervening in a case pending before the Court of Justice are authorised to use their own official language; similarly, Member States which intervene in proceedings pending before the General Court are authorised to use their own official language pursuant to Article 46(4) of the Rules of Procedure of the General Court.
35 It is apparent from a combined reading of those provisions that, when Member States bring an appeal before the Court of Justice, they are authorised to use their own official language, and the Registrar is to arrange for translation of that version of the appeal into the language of the case.
36 In the present case, it is common ground that the Kingdom of the Netherlands was an intervener in the proceedings before the General Court. The appeal was lodged in Dutch and the Registrar arranged for its translation into English, which is the language of the case, and it was finally served on EGBA in those two languages.
37 It cannot therefore be held that the appeal was brought in breach of Articles 36 to 42 of the Rules of Procedure of the Court of Justice.
38 The appeal is therefore admissible.
39 By the first part of the single ground of appeal, the Kingdom of the Netherlands claims that the General Court failed to fulfil its obligation to state reasons by examining the substance of EGBA’s complaint alleging indirect State aid to charities without examining the admissibility of that complaint. The Commission argued that that complaint was inadmissible on the ground that EGBA did not raise it either in its complaint or in its subsequent observations during the administrative procedure. The General Court referred to that argument raised by the Commission in paragraph 43 of the judgment under appeal, without subsequently addressing it expressly, which constitutes a breach of the obligation to state reasons. Furthermore, had the General Court examined the admissibility of that complaint, it would have had to declare it inadmissible.
40 By the second part of the single ground of appeal, the Kingdom of the Netherlands submits that, in paragraphs 41 to 53 of the judgment under appeal, the General Court failed to fulfil its obligation to state reasons when examining the complaint alleging indirect State aid to charities. That part is divided into two complaints.
41 By the first complaint, the Kingdom of the Netherlands criticises the General Court for having failed to state sufficient reasons why the question of indirect State aid to charities was relevant to the assessment of the alleged State aid to licence holders. It argues that EGBA’s complaint had in no way clarified how any indirect benefit to the charities could be relevant to any doubts about the existence of an advantage to the licence holders. In addition, the General Court did not explain how indirect State aid to charities could affect EGBA’s interests and thus be relevant to the assessment that it had to carry out.
42 By the second complaint, the Kingdom of the Netherlands criticises the General Court for having failed to respond in a reasoned manner to the argument, put forward at first instance by the Commission and supported by the Kingdom of the Netherlands, challenging EGBA’s complaint alleging indirect State aid to charities. In the first place, according to the Kingdom of the Netherlands, the Commission argued that EGBA had not raised that complaint during the administrative procedure and that charities could not be regarded as undertakings operating at subsequent levels of activity to those of licence holders. Although the General Court referred to that argument in paragraph 43 of the judgment under appeal, it did not subsequently address it expressly, which constitutes a breach of the obligation to state reasons. In the second place, the Kingdom of the Netherlands challenges paragraph 50 of the judgment under appeal. It claims that, in that judgment, the General Court’s presentation of an argument of the Commission was incomplete; that argument, moreover, related to the applicability of the market economy operator test and was not relied on in response to EGBA’s complaint. Furthermore, even though the General Court’s finding concerning the Commission’s failure to examine the nature of the bodies concerned is correct, it is not relevant to the alleged State aid to the licence holders.
43 By the third part of the single ground of appeal, the Kingdom of the Netherlands claims that the judgment in Tempus and Article 4(3) and (4) of Regulation 2015/1589, read in conjunction with Article 24 thereof, were incorrectly applied in paragraphs 46 to 53 of the judgment under appeal. That part is divided into two complaints.
44 By the first complaint, the Kingdom of the Netherlands disputes the applicability in the case in question of the criteria established in the judgment in Tempus, on the ground that the decision at issue was adopted in response to a complaint by an interested party, lodged pursuant to Article 24 of Regulation 2015/1589, and that decision is not a decision not to raise objections to a notified aid measure, to which Article 4(3) of that regulation, in essence, refers.
45 By the second complaint, the Kingdom of the Netherlands submits that, even if those criteria were applicable in the present case, the General Court failed to have regard to them in paragraphs 46 to 53 of the judgment under appeal, by extending the scope of the obligation on the Commission to seek information on account of EGBA’s complaint and, in essence, by altering the subject matter of that complaint, and therefore of the action, or by extending the scope of admissibility of that complaint. In the first place, the complaint was entirely focused on the alleged State aid to licence holders. The General Court allegedly extended the subject matter of the action by assuming that any advantage the charities might receive, even if it were classified as an indirect advantage, as referred to in paragraphs 47 and 48 of the judgment under appeal, would be relevant to any advantage to the licence holders. In the second place, EGBA cannot be considered to be an interested party and does not enjoy the rights provided for in Article 24 of Regulation 2015/1589.
46 By the fourth part of the single ground of appeal, the Kingdom of the Netherlands submits that, although the judgment under appeal, paragraph 42 et seq. thereof in particular, must be understood as meaning that the General Court considered EGBA to be an interested party as regards possible indirect State aid granted to charities, the General Court misconstrued the concept of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589 and erred in law in granting EGBA procedural rights in that regard. EGBA did not provide, either in its complaint or in its action at first instance, any connecting factor necessary for it to be regarded as such an interested party. EGBA did not state or show how its interests or those of its members are affected by how the remittance that the licence holders are obliged to make is allocated.
47 In its reply, the Kingdom of the Netherlands adds, in the first place, that, in failing to explain how EGBA, which alleged for the first time at first instance the existence of indirect State aid in favour of beneficiary third parties, was affected by that alleged aid, the General Court could not find that the Commission had infringed EGBA’s procedural rights by not initiating the formal investigation procedure. The General Court failed to draw a connection between its assessment and EGBA’s specific interest in relation to the alleged aid.
48 In the second place, the Kingdom of the Netherlands submits that EGBA incorrectly draws a distinction between the ‘parties concerned’, within the meaning of Article 108(2) TFEU, and an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589. According to the Kingdom of the Netherlands, EGBA should have shown either that it was in a direct or indirect competitive relationship with the beneficiaries of the alleged aid or that that aid threatened to have a specific effect on its situation. That is all the more so since the General Court examined only EGBA’s complaint concerning that alleged indirect State aid to charities.
49 In the third place, the Kingdom of the Netherlands adds that, even if the Netherlands legislation on gambling confers an advantage on charities, that advantage is independent of the grant of licences, even if it is true that it is inherent to the remittance which licence holders are required to make.
50 EGBA contends that the appeal is unfounded.
51 As a preliminary matter, it must be borne in mind that, in the context of the procedure for reviewing State aid provided for in Article 108 TFEU, the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, 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 with the internal market, must be distinguished from the stage of the review under Article 108(2) TFEU. It is only at the latter stage, which is designed to enable the Commission to be fully informed of all the facts of the case, that the TFEU imposes an obligation on the Commission to give the ‘parties concerned’ notice to submit their comments (judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 52 and the case-law cited, and order of 14 December 2023, CAPA and Others v Commission, C‑742/21 P, EU:C:2023:1000, paragraph 65).
52 It follows that where, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission finds, by a decision taken on the basis of Article 108(3) TFEU, that aid is compatible with the internal 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 EU judicature. For those reasons, an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 108(2) TFEU is to be declared to be admissible where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him or her under the latter provision (judgment of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 53 and the case-law cited, and order of 14 December 2023, CAPA and Others v Commission, C‑742/21 P, EU:C:2023:1000, paragraph 66).
53 Moreover, it should also be borne in mind that the obligation on the General Court to state reasons under the second paragraph of Article 296 TFEU and Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union requires it to disclose in a clear and unequivocal manner the reasoning that it has followed, in a way that allows the interested parties to understand the justification for the decision taken and permits the Court of Justice to exercise its powers of review (see, to that effect, judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 113 and the case-law cited).
54 That obligation to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal (see, to that effect, judgment of 7 March 2024, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, C‑725/22 P, EU:C:2024:217, paragraph 131 and the case-law cited).
55 It must be stated that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 79, and of 15 May 2025, Sberbank v SRB, C‑793/23 P, EU:C:2025:356, paragraph 38 and the case-law cited).
56 By the first part of the single ground of appeal, the Kingdom of the Netherlands submits that the General Court failed to fulfil its obligation to state reasons by examining the substance of EGBA’s complaint alleging indirect State aid to charities without examining the admissibility of that complaint.
57 In that regard, it should be noted that, as the General Court stated in paragraph 43 of the judgment under appeal, the Commission submitted that EGBA had not raised that complaint either in its complaint made to the Commission or in its subsequent observations. However, contrary to the argument made by the Kingdom of the Netherlands, the Commission did not submit that that complaint was inadmissible.
58 Furthermore, it must be held that, in so far as, in the judgment under appeal, the General Court examined the merits of the second complaint in the third part of the first plea, it accepted implicitly that that complaint was admissible.
59 Given that the admissibility of that complaint was not disputed, the General Court was entitled, in so far as it considered that the complaint was admissible, to examine it on the merits without first setting out why it considered that that complaint was admissible and that there was no need to raise, of its own motion, the question of the admissibility of that complaint.
60 It cannot therefore be held that the General Court failed to fulfil its obligation to state reasons by not giving the reasons why it had found that the second complaint in the third part of the first plea was admissible.
61 Furthermore, the Kingdom of the Netherlands’ argument that the General Court should have declared that complaint to be inadmissible seeks to challenge the merits of the General Court’s implied decision, not to argue a failure to state reasons or to state sufficient reasons in the judgment under appeal. In addition, that argument overlaps with the arguments of the Kingdom of the Netherlands set out in support of the second complaint in the fourth part of the single ground of appeal and is examined in the context of the analysis of that part.
62 Consequently, the Court rejects the first part of the single ground of appeal.
63 By the second part of the single ground of appeal, divided into two complaints, the Kingdom of the Netherlands submits that, in paragraphs 41 to 53 of the judgment under appeal, the General Court failed to fulfil its obligation to state reasons when it examined the complaint relating to indirect State aid to charities.
64 By the first complaint, the Kingdom of the Netherlands complains that the General Court failed to give sufficient reasons as to why the question of indirect State aid to charities was relevant to the assessment of the alleged State aid to licence holders.
65 In that regard, it should be noted that the measure at issue, which, as is apparent from paragraph 4 of the judgment under appeal, was the subject matter of EGBA’s complaint and which was examined by the Commission, consisted, first, of the extension of licences issued for sports betting, horse race betting, lotteries and casinos to licence holders and, second, of decisions adopted by the Netherlands Gambling Authority pursuant to that rule, which renewed six licences.
66 In paragraph 44 of the judgment under appeal, the General Court noted that it was clear from the Netherlands legislation on gambling submitted to the Commission for assessment that part of the proceeds generated by gambling activities had to be remitted, by the licence holders, exclusively to bodies that serve the common interest as designated in the licences. In paragraph 45 of that judgment, it observed that the Commission had based its analysis that there was no advantage for the licence holders specifically on their obligation to remit part of their proceeds to bodies that serve the common interest. In paragraph 46 of that judgment, it considered that, when the decision at issue was adopted, the Commission had information on the measure at issue available to it which should have led it to examine whether the Netherlands legislation was designed in such a way as to channel the proceeds generated by the activity of the licence holders towards, primarily, the bodies that serve the common interest designated by the licences.
67 The General Court specified, in paragraphs 47 to 49 of that judgment, referring to its case-law and to paragraphs 115 and 116 of the notice on the notion of State aid, that when examining a measure, the Commission could have to consider whether an advantage could be regarded as granted indirectly to operators other than the immediate recipient of the transfer of State resources. According to the General Court, the Commission should therefore have sought to ascertain whether the measure at issue conferred an indirect advantage on bodies that serve the common interest. It noted that the decision at issue was nevertheless ‘silent’ on that issue.
68 In paragraph 51 of that judgment, the General Court found that the Commission had not examined whether the measure at issue conferred an indirect advantage on the bodies to which the licence holders had to remit part of their proceeds, while the remittance of part of the proceeds generated by the activity of the licence holders to bodies that serve the common interest designated by those licences constituted one of the main features of the legislation concerned. The General Court considered that, in so doing, the Commission had ruled out the possibility, without further details, that that issue could give rise to serious difficulties in the classification of the measure at issue as State aid, which the formal investigation procedure alone could have resolved.
69 Having regard to those considerations of the General Court, it must be held that the General Court set out the reasons why it considered that the Commission should, in its analysis of the measure at issue, as defined in paragraph 4 of the judgment under appeal, have examined whether that measure conferred an indirect advantage, in the case in question on the bodies to which the licence holders had to remit part of their proceeds, and that the failure to examine that question in the decision at issue did not make it possible to rule out the existence of serious difficulties.
70 By the second complaint, the Kingdom of the Netherlands criticises the General Court for having failed to give reasons in its response to the argument, put forward at first instance by the Commission and supported by the Netherlands, challenging EGBA’s complaint alleging indirect State aid to charities.
71 In the first place, first, as noted in paragraph 57 of the present judgment, the General Court stated, in paragraph 43 of the judgment under appeal, that the Commission maintained that EGBA had not raised that complaint during the administrative procedure. The General Court also stated that, in those circumstances, the Commission had submitted that it did not fall to it, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information was in the public domain.
72 In that regard, the General Court began by recalling, in paragraph 34 of the judgment under appeal, the case-law according to which the lawfulness of a decision not to raise objections at the end of a preliminary examination procedure falls to be assessed by the EU judicature, in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which could have been available to the Commission.
73 Next, the General Court observed, in paragraph 44 of the judgment under appeal, that it was clear from the Netherlands legislation on gambling submitted to the Commission for assessment that part of the proceeds generated by gambling activities had to be remitted, by the licence holders, exclusively to bodies that serve the common interest as designated in the licences. It considered that, in those circumstances, the Commission could not have been unaware of the existence of such an obligation.
74 Last, in paragraph 45 of the judgment under appeal, the General Court observed that, in the decision at issue, the Commission had based its analysis that there was no advantage for the licence holders specifically on their obligation to remit part of their proceeds to bodies that serve the common interest.
75 Accordingly, the grounds on which the General Court rejected the Commission’s argument referred to in paragraph 71 of the present judgment are clear from the reasons given in the judgment under appeal. It follows that the Kingdom of the Netherlands is not justified in claiming that the General Court failed to fulfil its obligation to state reasons in that regard.
76 Second, the General Court also stated, in paragraph 43 of the judgment under appeal, that the Commission disputed EGBA’s complaint alleging indirect State aid to charities on the ground that the bodies in question could not be considered to be undertakings operating at subsequent levels of activity to those of the holders of the gambling licences within the meaning of paragraph 115 of its notice on the notion of State aid.
77 It should be noted that, in addition to the grounds set out in paragraphs 47 to 49 of the judgment under appeal, which are set out in paragraph 67 of the present judgment, the General Court found, in paragraph 50 of the judgment under appeal, that, as regards the Commission’s argument that, by requiring the licence holders to remit part of their proceeds to bodies that serve the common interest, the Netherlands authorities pursued goals directly related to public policy and public morality, the Commission, in the decision at issue, had failed to examine whether the bodies associated with the measure at issue were undertakings or pursued public service objectives.
78 In that regard, it must be held that the General Court intended to point out that the Commission had not examined either the question whether an indirect advantage, as defined in particular in paragraph 115 of the notice on the notion of State aid, could have been granted, or even the question whether the charities concerned were undertakings.
79 The General Court thus rejected implicitly the Commission’s argument in so far as it related to an analysis which the Commission had not carried out in the decision at issue, since, given that the Commission had not examined the question of the existence of an indirect advantage, or whether the charities concerned constituted undertakings, it had not, a fortiori, examined whether they could be regarded as undertakings operating at subsequent levels of activity to those of the holders of the gambling licences, within the meaning of paragraph 115 of the notice on the notion of State aid.
80 It follows that, while it is true that the General Court could have set out more clearly the reason why it rejected the Commission’s argument, it is nevertheless sufficiently apparent from the reasons given in the judgment under appeal that that argument was rejected on account of the lack of examination which, according to the General Court, had vitiated the decision at issue. The Kingdom of the Netherlands is therefore not justified in claiming that the General Court failed to fulfil its obligation to state reasons in that regard.
81 In the second place, in so far as the Kingdom of the Netherlands challenges paragraph 50 of the judgment under appeal, it must be noted that that Member State does not explain how the Commission’s argument was set out in an incomplete manner.
82 Moreover, the Netherlands’ line of argument, challenging the relevance of the General Court’s finding regarding the Commission’s failure to examine the nature of the bodies concerned, aims to challenge the merits of the reasons given in the judgment under appeal, not a failure to state reasons or sufficient reasons therein. In addition, it is clear that that argument overlaps with the arguments set out in support of the second complaint in the third part of the single ground of appeal and is examined in the context of the analysis of that part.
83 Consequently, the Court rejects the second part of the single ground of appeal.
84 By the third part of the single ground of appeal, divided into two complaints, the Kingdom of the Netherlands alleges misapplication, in paragraphs 46 to 53 of the judgment under appeal, of the judgment in Tempus and of Article 4(3) and (4) of Regulation 2015/1589, read in conjunction with Article 24 thereof.
85 By the first complaint, the Kingdom of the Netherlands disputes the applicability in the case in question of the criteria established in the judgment in Tempus, on the ground that Article 4(3) of Regulation 2015/1589 concerns, in essence, notified aid, whereas, unlike the situation which gave rise to that judgment, the measure at issue was not notified, but was brought to the attention of the Commission by means of a complaint. In that regard, it is sufficient to note that, under Article 15(1) of that regulation, Article 4(3) of that regulation is, as the case may be, also applicable where a Commission decision is adopted following the lodging of a complaint.
86 By the second complaint, the Kingdom of the Netherlands submits that, even if those criteria were applicable in the case in question, the General Court failed to have regard to them in paragraphs 46 to 53 of the judgment under appeal.
87 In that connection, it must be borne in mind that, where an applicant seeks annulment of a Commission decision not to initiate the formal investigation procedure referred to in Article 108(2) TFEU, the applicant may rely on any plea capable of showing that the assessment of the information and evidence which the Commission had available to it during the preliminary examination phase of the measure should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or of altering the conditions of its admissibility (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑321/21 P, EU:C:2023:713, paragraph 131 and the case-law cited).
88 Furthermore, in certain circumstances, it may be necessary, when the existence and lawfulness of State aid is being examined, for the Commission to go beyond a mere examination of the facts and points of law brought to its notice, in particular in a complaint. The Commission is required to conduct the examination procedure of the measures at issue diligently and impartially, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose. If the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes an indication of the existence of serious difficulties (see, to that effect, judgment of 5 September 2024, Slovenia v Commission, C‑447/22 P, EU:C:2024:678, paragraphs 52 to 56 and the case-law cited).
89 In the present case, as recalled in paragraph 65 of the present judgment, the measure at issue, which, as is apparent from paragraph 4 of the judgment under appeal, was the subject matter of EGBA’s complaint and which was examined by the Commission, consisted, first, of the extension of licences issued for sports betting, horse race betting, lotteries and casinos to licence holders and, second, of decisions adopted by the Netherlands Gambling Authority pursuant to that rule, which renewed six licences.
90 It must be stated that the argument of the Kingdom of the Netherlands is based on the incorrect premiss that, during that examination, the Commission was required to analyse the Netherlands legislation of which the measure at issue formed part only in so far as that legislation was capable of including State aid granted to the licence holders concerned and in the form of the grant of licences.
91 As the General Court held, in paragraphs 47 and 48 of the judgment under appeal, the examination of any indirect advantage granted to charities is relevant for determining whether State aid, within the meaning of Article 107(1) TFEU, existed. That examination involved an analysis of the Netherlands legislation of which the measure at issue formed part in its entirety, not the examination of another legally distinct framework adopted by the Kingdom of the Netherlands. As the General Court pointed out in paragraphs 49 and 51 of that judgment, the remittance of part of the proceeds generated by the activity of the licence holders to bodies designated by those licences constituted one of the main features of the legislation at issue on which the Commission based its findings in the decision at issue. It was therefore relevant to examine whether those bodies thereby received State aid.
92 Consequently, in the light, in particular, of the fact thus raised that the Commission itself ruled out the possibility that the measure at issue constituted State aid on the basis of that feature alone and thus of only part of the Netherlands legislation, the General Court did not err in law in holding that, in its analysis of that measure following EGBA’s complaint, the Commission was required to examine whether there was a direct advantage and, as the case may be, an indirect advantage, resulting from that measure.
93 In the light, moreover, of the obligations incumbent on that institution and recalled in paragraph 88 of the present judgment, it is irrelevant that, in its complaint, EGBA claimed more specifically the existence of an advantage to the licence holders and of State aid granted to them by the measure at issue.
94 Similarly, EGBA, having been regarded as an interested party as regards the measure at issue, could, in so far as it was capable of calling into question the decision at issue relating to that measure, rely on an argument before the General Court relating to the remittance of part of the proceeds generated by the activity of the licence holders to bodies designated by those licences.
95 Consequently, contrary to the argument made by the Kingdom of the Netherlands, the General Court cannot be criticised for having extended the Commission’s obligation to carry out an examination following EGBA’s complaint or for having broadened the subject matter of that complaint and that of the action, or for having extended the conditions of admissibility of the action, in the light of the particular structure of the Netherlands legislation on gambling of which the measure at issue forms part.
96 Consequently, the Court rejects the third part of the single ground of appeal.
97 By the fourth part of the single ground of appeal, the Kingdom of the Netherlands submits that, although the judgment under appeal, paragraph 42 et seq. thereof in particular, must be understood as meaning that the General Court considered EGBA to be an interested party as regards possible indirect State aid granted to charities, the General Court misconstrued the concept of ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589 and erred in law in granting EGBA procedural rights in that regard.
98 It is sufficient to note that the Kingdom of the Netherlands’ line of argument is based on the same incorrect premiss as that set out in paragraph 90 of the present judgment and must be rejected for the reasons set out in paragraphs 91 to 95 of the present judgment.
99 Consequently, the Court rejects the fourth part of the single ground of appeal.
100 In the light of all the foregoing considerations, since none of the parts of the single ground of appeal has been upheld, the appeal must be dismissed in its entirety.
101 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EGBA has applied for costs and the Kingdom of the Netherlands has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by EGBA. 1. Dismisses the appeal; 2. Orders the Kingdom of the Netherlands to bear its own costs and to pay those incurred by European Gaming and Betting Association.