Case T‑118/13

Whirlpool Europe BV

v

European Commission

(Actions for annulment — State aid — Household appliances — Restructuring aid — Decision declaring the aid compatible with the internal market, subject to compliance with certain conditions — Decision taken following the annulment by the Court of the earlier decision concerning the same procedure — Lack of individual concern — No substantial effect on the competitive position — Inadmissibility)

Summary — Judgment of the General Court (Second Chamber), 22 June 2016

1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Examination by the EU judicature of its own motion — Account taken of observations of the applicant submitted after the lodging of the rejoinder

(Art. 263, fourth para., TFEU)

2.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding an aid compatible with the internal market — Action by an undertaking not demonstrating that its market position was substantially affected — Inadmissibility

(Arts 108(3) TFEU and 263, fourth para., TFEU)

3.      Judicial proceedings — Admissibility of actions — Judged by reference to the situation when the application was lodged

4.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the internal market at the conclusion of the formal investigation procedure — Action by an association or an undertaking having played an active role during that procedure — Characteristic insufficient for a finding of capacity to bring an action — Inadmissibility

(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)

1.      See the text of the decision.

(see paras 37, 38)

2.      Where an undertaking calls into question the merits of the decision appraising State aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, the mere fact that it may be regarded as concerned within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible under the fourth paragraph of Article 263 TFEU. It must go on to demonstrate that it has a particular status. That applies in particular where its market position is substantially affected by the aid to which the decision at issue relates. In that regard, the undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show, in the light of its participation in the procedure and the magnitude of the harm to its position on the market, that its factual circumstances distinguish it in a similar way to the undertaking in receipt of the aid.

In determining whether it is affected in that way, the mere fact that such a decision may have some influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure. The undertaking concerned must provide evidence to establish the particularity of its competitive situation and demonstrate that its competitive position is substantially affected in comparison with the other undertakings competing in the market at issue. It cannot simply be presumed that the applicant would have significantly increased its sales in the event of the disappearance from the market of the undertaking benefiting from the measures at issue, without any evidence to support that claim, in a situation where the structure of the market is unconcentrated and characterised by the presence of a large number of operators. It must be demonstrated that the aid at issue helped the recipient to maintain market shares which would have otherwise been held by the undertaking concerned itself and, therefore, that it suffered a sufficiently considerable loss of earnings in comparison with its other competitors, so as to characterise it as a substantial effect on its market position. In that regard, its position as number two in the market, behind the recipient, cannot by itself give rise to a presumption of the existence of a substantial effect on its market position.

(see paras 44-47, 51, 52)

3.      See the text of the decision.

(see paras 49, 58)

4.      See the text of the decision.

(see para. 55)