Case T-236/10

Asociación Española de Banca

v

European Commission

(Actions for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Association — Lack of individual concern — Inadmissibility)

Summary of the Order

1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Action brought by an association responsible for protecting the collective interests of undertakings — Admissibility — Conditions — Actions brought at the same time by the members — Inadmissibility of the association’s action

(Art. 263, fourth para., TFEU)

2.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision prohibiting a sectoral aid scheme — Action by an undertaking that has benefited from individual aid granted under that scheme and is not covered by the recovery obligation — Inadmissibility

(Art. 263, fourth para., TFEU)

3.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Action by an association that has had an active role during those proceedings but that has not gone beyond the exercise of the procedural rights granted to interested parties under Article 108(2) TFEU — Inadmissibility

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

1.      A professional association which is responsible for protecting the collective interests of its members is entitled to bring an action for the annulment of a final decision of the Commission on State aid only in two sets of circumstances, namely, first, where the undertakings which it represents or some of those undertakings themselves have locus standi and, second, if it can prove an interest of its own, in particular because its position as a negotiator has been affected by the measure of which annulment is sought. In that regard, the first situation of admissibility of an action brought by an association, based on the representation of its members is that in which the association, by bringing its action, has substituted itself for one or more of the members whom it represents, on condition that those members were themselves in a position to bring an admissible action.

The action brought by an association presents procedural advantages, since it obviates the institution of numerous separate actions against the same decisions. That first situation of admissibility of an action brought by an association presupposes that the association acts in place of its members. It follows that an association, acting as the representative of its members, has locus standi to bring proceedings for annulment where those members have not themselves brought an action, even though they would have been entitled to do so.

Such a solution does not deprive Article 263 TFEU of its effectiveness and does not prejudice either the principle of legal certainty or the association’s rights of defence. It is true that it makes the admissibility of an action by associations conditional upon no action having been brought by other parties, in this case their members. However, such a situation cannot be considered as being a source of uncertainty or insecurity, as it can be legitimately expected of an association responsible for protecting the interests of its members that it is aware of actions brought by them and vice versa. Moreover, the inadmissibility of the applicant association’s action by reason of actions brought by its members does not affect the effectiveness of Article 263 TFEU and its rights of defence, that is, in essence, its right to effective judicial protection. There are two possibilities: either the applicant association brings an action to defend the interests of its members who have locus standi and the action declared admissible will be that of the member of the association or that of the association depending on whether or not one of its members has brought its own action; or the association brings an action to defend its own interest and its action may be declared admissible, even though actions have been brought by its members, where the existence of such an interest is established.

(see paras 19, 23-24, 29)

2.      An undertaking cannot, in principle, bring an action for annulment of a Commission decision prohibiting a sectoral 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. Such a decision is, vis-à-vis such an undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner.

However, where the decision in question is of concern to the applicant undertaking not only by virtue of its being an undertaking in the sector concerned and a potential beneficiary of the aid scheme, but also by virtue of its being an actual beneficiary of individual aid granted under that scheme, the recovery of which has been ordered by the Commission, that decision is of individual concern to the applicant and the applicant’s action against it is admissible.

(see paras 33-34)

3.      With regard to an action for annulment of a Commission decision on State aid, an applicant can be individually concerned as a result of its having played a significant role in the procedure leading to the adoption of the contested decision. However, it is always in a particular situation in which the applicant occupies a clearly circumscribed position as negotiator which was intimately linked to the actual subject-matter of the decision, thus placing it in a factual situation which distinguishes it from all other persons. In particular, the role of an association which does not go beyond the exercise of the procedural rights granted to interested parties under Article 108(2) TFEU cannot be compared to such a particular situation.

(see paras 43-44)