Case C‑274/12 P

Telefónica SA

v

European Commission

(Appeal — Action for annulment — Fourth paragraph of Article 263 TFEU — Right to bring an action — Standing to bring proceedings — Natural or legal persons — Act of individual concern to them — Regulatory act not entailing implementing measures — Decision declaring a State aid scheme incompatible with the common market — Right to effective judicial protection)

Summary — Judgment of the Court (Grand Chamber), 19 December 2013

1.        Actions for annulment — Natural or legal persons — Regulatory acts entailing, or not entailing, implementing measures — Meaning — Judicial remedies available against those acts — Conditions for recourse to a plea of illegality or a reference for a preliminary ruling on validity

(Art. 19 TEU, Arts 263, fourth para., TFEU, 267 TFEU, 277 TFEU and 288, fourth para., TFEU)

2.        Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Concept — Commission decision declaring a sectoral aid scheme incompatible with the common market — Inadmissibility of the action brought before the European Union judicature — Right to effective judicial protection — Obligation to use domestic remedies to contest those measures

(Art. 19 TEU, Arts 263, fourth para., TFEU, 267 TFEU and 288, fourth para., TFEU)

3.        Actions for annulment — Natural or legal persons — Acts of direct and individual concern to them — Individual concern in respect of an act of general application — Conditions — Commission decision prohibiting a sectoral aid scheme — Mere fact of belonging to the sector in question insufficient for an undertaking to be individually concerned by such a decision

(Art. 263, fourth para., TFEU)

4.        Fundamental rights — Right to effective judicial protection — Review of the legality of European Union acts — Methods — Protection of that right by the European Union judicature or by the national courts depending on the legal nature of the contested act — Possibility of recourse to an action for annulment or to a reference for a preliminary ruling on validity

(Art. 19 TEU, Arts 263, fourth para., TFEU, 267 TFEU and 277 TFEU)

1.        The concept of a regulatory act which does not entail implementing measures, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act.

In this regard, first, where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures are adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails. Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU.

Second, the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons.

Third, in order to determine whether the measure being challenged entails implementing measures, reference should be made exclusively to the subject-matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration.

(see paras 27-31, 56-58)

2.        A Commission decision which declares a State aid scheme partially incompatible with the common market entails implementing measures that can be challenged before the national courts as it is addressed solely to the Member State in question and does not define the specific consequences that it has for each taxpayer, consequences which will be embodied in challengeable administrative acts. It follows that an undertaking which is affected by such a decision, and which cannot, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, challenge it directly before the European Union judicature, can nevertheless contend that it is invalid before the national courts and cause the latter to refer questions to the Court of Justice for a preliminary ruling, pursuant to Article 267 TFEU, in particular by bringing before the national courts the administrative act which refuses it a benefit under the regime at issue.

(see paras 34-36, 58, 59)

3.        Persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the first limb of the fourth paragraph of Article 263 TFEU, 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. The possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it. Accordingly, an undertaking cannot, in principle, contest a Commission decision prohibiting an aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme.

(see paras 46, 47, 49)

4.        See the text of the decision.

(see paras 56, 57, 59)