Case T‑221/10

Iberdrola, SA

v

European Commission

(Action for annulment — State aid — Aid scheme 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 — Act entailing implementing measures — Lack of individual concern — Inadmissibility)

Summary of the Judgment

1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision prohibiting a sectoral aid scheme — Action brought by an undertaking which received individual aid granted under the scheme without being subject to the recovery obligation — Undertaking which did not occupy a position as negotiator during the procedure which led up to the adoption of the decision — Inadmissibility

(Art. 263, fourth para., TFEU)

2.      Actions for annulment — Natural or legal persons — Distinction between individual concern and interest in bringing proceedings

3.      European Union law — Principles — Right to effective judicial protection — Action for annulment of a decision on State Aid declared inadmissible by the General Court — Possibility of requesting the national court to make a reference for a preliminary ruling

4.      Actions for annulment — Natural or legal persons — Regulatory act not entailing implementing measures within the meaning of the fourth paragraph of Article 263 TFEU — Concept — Commission decision prohibiting a sectoral aid scheme and referring to national implementing measures — Excluded

(Art. 263, fourth para., TFEU)

1.      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.

An undertaking may also be individually concerned as a result of its having played a significant role in the procedure leading to the adoption of the incompatibility decision, where it occupies a clearly circumscribed position as negotiator which is intimately linked to the actual subject-matter of the decision, thus placing it in a factual situation which distinguishes it from all other persons. However, if the undertaking confines itself to submitting comments, in the same way as the other parties concerned, and to attending a meeting, like other interested third parties, it is not apparent from those circumstances that it occupies a position as negotiator that would mean that it could be recognised as being individually concerned.

(see paras 25-26, 34-35)

2.      Although a legal interest in bringing proceedings may be established inter alia by reference to actions brought before a national court after an action for annulment has been brought before a Court of the European Union, whether a natural or legal person is individually concerned is assessed on the date on which the action is brought and is determined only by the contested decision. Thus, a person individually concerned by a decision that declares aid incompatible with the common market and orders its recovery remains so, even if it subsequently emerges that the person will not be required to refund it.

(see para. 40)

3.      The European Union is based on the rule of law and the acts of its institutions are subject to review by the Court of their compatibility with the Treaty and with the general principles of law which include fundamental rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the European Union’s legal order.

Where the General Court declares inadmissible an action for annulment brought by an undertaking against a Commission decision that declares an aid scheme incompatible with the common market but does not order the recovery of the aid, nothing prevents that undertaking requesting the national court, in the course of any domestic proceedings, to make a reference for a preliminary ruling under Article 267 TFEU putting in issue the validity of the Commission’s decision in so far as it finds that the scheme at issue is incompatible. In such a case, the undertaking is not in the least deprived of any effective judicial protection.

(see para. 43)

4.      A Commission decision prohibiting a sectoral aid scheme and referring to the existence of national measures intended to implement that decision, which measures may be challenged before a national court, cannot be described as an act not entailing implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.

(see paras 45-47)