ORDER OF THE GENERAL COURT (Fifth Chamber)
7 March 2013 (*)
(Action for annulment – State aid – No individual concern – Inadmissibility)
In Case T‑198/09,
UOP Ltd, established in Guildford (United Kingdom), represented by B. Hartnett and O. Geiss, lawyers,
applicant,
v
European Commission, represented by K. Talabér-Ritz and T. Scharf, acting as Agents,
defendant,
supported by
IFP, established in Rueil-Malmaison (France), represented by É. Morgan de Rivery and A. Noël-Baron, lawyers,
intervener,
APPLICATION for partial annulment of Commission Decision 2009/157/EC of 16 July 2008 on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13),
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts
1 The intervener, IFP, is a non-profit-making body involved in research, training and documentation in the field of hydrocarbons, which receives, on that account, State support. From 1944 to 2002, IFP received the proceeds of a parafiscal charge on certain petroleum products. On two occasions, in 1996 for the period 1993 to 1997 and in 1998 for the period 1998 to 2002, the Commission of the European Communities concluded that the payment to IFP did not constitute State aid within the meaning of the EC Treaty, taking the view that IFP was a non-profit-making research centre which disseminated the results of its research on a non-commercial basis to all undertakings without discrimination and did not give more favourable treatment to undertakings in which it had holdings.
2 Axens, established in 2001, is a wholly-owned subsidiary of IFP; the latter, by concluding two agreements – an exclusive framework licensing agreement and an exclusive product licensing agreement – made Axens responsible for managing the marketing of IFP’s research and development (R&D) results in the fields of refining, petrochemicals and gas. In addition, under an industrial research agreement with IFP, Axens has preferential access (‘right of first refusal’) to the results of all R&D work conducted by IFP in its field of activity.
3 Prosernat is a commercial enterprise acquired in 2001 as part of the transfer by the company ISIS of ownership of IFP Investissements to IFP. It provides consultancy and other services and supplies gas-treatment and sulphur-recovery plants.
4 The applicant, UOP Ltd, specialises in the design, engineering, licensing and servicing of such processes as oil conversion, clean fuel production, fuel desulphurisation, and in petrochemicals technologies. It also produces catalysts, molecular filters, absorbents and other specialised equipment.
5 [Confidential]
6 By letter dated 21 December 2005, the Commission informed France that it had decided to initiate the procedure laid down in Article 88(2) EC in respect of the allegedly unlawful State aid to IFP and one of its subsidiaries, Axens. That decision was published on 18 February 2006 in the Official Journal of the European Union.
7 On 16 July 2008, the Commission adopted Decision 2009/157/EC on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13; ‘the contested decision’).
8 By that decision, the Commission held that the measure which had been implemented by the French Republic for IFP and its subsidiaries Axens and Prosernat constituted aid within the meaning of Article 87(1) EC. It held that IFP, Axens and Prosernat were afforded a selective advantage financed by State resources, which arose because of the non-coverage by their own resources of R&D activities in the fields of activity of Axens and Prosernat. The non-coverage of IFP’s expenditure in the fields of activity of Axens and Prosernat was held to result from the intra-group transfer mechanisms established by the exclusive agreements between IFP and Axens, on the one hand, and IFP and Prosernat, on the other. The Commission considered, therefore, that the aid had come about as a result of the existence of commercial subsidiaries and the concurrent conclusion of exclusive agreements between those subsidiaries and the parent company, in so far as those subsidiaries did not guarantee total coverage of the costs of work carried out by IFP on behalf of Axens and Prosernat. The Commission concluded that the aid was, however, compatible with the provisions of the 1996 Community framework for State aid for research and development (OJ 1996 C 45, p. 5) and thus with Article 87(3)(c) EC, provided that certain conditions were complied with.
Procedure and forms of order sought
9 By application lodged at the Registry of the General Court on 20 May 2009, the applicant brought the present action.
10 By document lodged at the Court Registry on 11 August 2009, IFP sought leave to intervene in support of the form of order sought by the Commission.
11 By order of the President of the Fourth Chamber of the Court of 4 December 2009, IFP was granted leave to intervene in support of the Commission. The intervener lodged its statement in intervention on 22 January 2010, on which the applicant submitted its observations on 7 April 2010.
12 Following a change in the composition of the Chambers of the Court, the Judge Rapporteur was assigned to the Fifth Chamber, to which the present case was accordingly allocated.
13 By order of 12 July 2011 in Case T‑198/09 UOP v Commission, not published in the ECR, the President of the Fifth Chamber of the Court upheld in part the various applications made by the applicant and the Commission for confidential treatment vis-à-vis the intervener in respect of certain information contained in their pleadings. The applicant and the Commission therefore produced non-confidential versions of the relevant pleadings and annexes, which were served on the intervener.
14 By documents lodged at the Court Registry on 6 October and 3 November 2011 respectively, the intervener submitted a supplementary statement in intervention and observations concerning the non-confidential versions of the pleadings and annexes.
15 The applicant claims that the Court should:
– annul the contested decision in so far as it finds the aid granted by the French Republic to IFP and its subsidiaries Axens and Prosernat to be compatible with the common market under Article 87(3)(c) EC;
– order the Commission to pay the costs.
16 The Commission and the intervener contend that the Court should:
– dismiss the action as inadmissible or, in the alternative, as unfounded;
– order the applicant to pay the costs.
Law
17 Under Article 113 of the Rules of Procedure of the General Court, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action, including so far as the conditions of admissibility of an action are concerned (see, to that effect, order of 5 July 2001 in Case C‑341/00 P Conseil national des professions de l’automobile and Others v Commission [2001] ECR I‑5263, paragraph 32, and judgment in Case T‑88/01 Sniace v Commission [2005] ECR II‑1165, paragraph 53). Under Article 114(3) of the Rules of Procedure, unless the Court decides otherwise, the remainder of the proceedings are to be oral.
18 In the present case the Commission, although it has not pleaded inadmissibility of the action in a separate document, has advanced arguments to that effect in the defence and the rejoinder, to which the applicant has responded. The Commission has raised two pleas of inadmissibility: the first alleging that the action was brought out of time and the second that the applicant is not individually concerned.
19 IFP submitted its observations on the admissibility of the action in its statement in intervention, its supplementary statement in intervention and its observations of 3 November 2011. The applicant responded to IFP’s arguments relating to the admissibility of the action in its observations on IFP’s statement in intervention.
20 In those circumstances, the Court considers itself to be sufficiently informed by the documents in the file and has decided, pursuant to Article 114(3) of the Rules of Procedure, to give a decision on the action without opening the oral procedure.
21 The Court considers it appropriate to start by considering the plea of inadmissibility alleging that UOP does not have standing to bring proceedings.
22 As a preliminary point, it should be noted that, despite the entry into force during the present proceedings – on 1 December 2009 – of Article 263 TFEU, the question of the admissibility of the application for annulment must be decided on the sole basis of the fourth paragraph of Article 230 EC (Case T‑291/04 Enviro Tech Europe and Enviro Tech International v Commission [2011] ECR II‑0000, paragraph 98; see, to that effect, orders of 7 September 2010 in Case T‑532/08 Norilsk Nickel Harjavalta and Umicore v Commission [2010] ECR II‑3959, paragraphs 68 to 75; and Case T‑539/08 Etimine and Etiproducts v Commission [2010] ECR II‑4017, paragraphs 74 to 81).
23 Under the fourth paragraph of Article 230 EC, a natural or legal person may institute proceedings against a decision addressed to another person only if that decision is of direct and individual concern to the former. Since the contested decision was addressed to the French Republic, it must be considered whether the applicant meets those two requirements.
24 As regards the question whether the applicant is individually concerned by the contested decision, it should be recalled that persons other than those to whom a decision is addressed may claim to be individually concerned 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 those factors, distinguishes them individually just as in the case of the person addressed (see, to that effect, Case 25/62 Plaumann v Commission [1963] ECR 95, at 107; and Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 30).
25 In the sphere of State aid, not only the undertaking in receipt of the aid but also the undertakings competing with it which have played an active role in the procedure opened pursuant to Article 88(2) EC in respect of a measure granting aid have been recognised as being individually concerned by the Commission decision closing that procedure, provided that their market position is substantially affected by the aid which is the subject of the contested decision (see, to that effect, Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraph 25; and judgment of 12 December 2006 in Case T‑146/03 Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, not published in the ECR, paragraph 46).
26 An undertaking cannot therefore rely on its status as a competitor of the undertaking in receipt of aid but must additionally show that, having regard to the extent of any participation by it in the procedure and to the extent of the detriment to its market position, its circumstances distinguish it in a similar way to the undertaking in receipt of the aid (Case T‑36/99 Lenzing v Commission [2004] ECR II‑3597, paragraph 75; and Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, paragraph 25 above, paragraph 47).
27 The mere fact that an applicant has participated in the administrative procedure does not permit the inference that it has standing to bring proceedings. An applicant must, in any event, show that the measure forming the subject‑matter of the contested decision was likely to affect its market position substantially (see, to that effect, Case C‑260/05 P Sniace v Commission [2007] ECR I‑10005, paragraph 60, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission, paragraph 25 above, paragraphs 47, 48 and 50, and order of 21 January 2011 in Case T‑54/07 Vtesse Networks v Commission, not published in the ECR, paragraph 92).
28 [Confidential]
29 The Commission maintains, in essence, that the applicant has not shown that its competitive position was substantially affected. In particular, it has not established that the measure referred to in the contested decision affected it differently from the other competitors of IFP, Axens and Prosernat.
30 The applicant submits that its locus standi derives from its position as a distinct and singular competitor of the beneficiaries of the aid at issue and from the fact that that aid for R&D affects it significantly and particularly by providing the beneficiaries with a selective advantage as regards competitivity on the affected markets.
31 A preliminary point to note is that, in the application, the applicant gives a very succinct description of the market segments in which it is in competition with the aid beneficiaries but does not produce any evidence to substantiate the submissions mentioned in paragraph 30 above. At the stage of the reply, the applicant identified certain elements contained in the contested decision and the annexes to the application and the defence. It also provided information concerning the competitive situation in the markets for aromatics process licensing, hydrocracking licensing and hydrotreating licensing.
32 It is to be noted first of all that the Commission is incorrect in maintaining, on the basis of Article 48(1) of the Rules of Procedure, that the evidence produced by the applicant at the stage of the reply is inadmissible because the applicant did not give reasons for its late production. In accordance with that provision, the parties may make offers of evidence in support of their arguments in the reply and rejoinder, but must then give reasons for the delay in making the offer. However, according to the case-law, evidence in rebuttal and the amplification of offers of evidence, in response to evidence in rebuttal put forward by the opposing party in the defence, are not covered by the time-bar rule in Article 48(1) of the Rules of Procedure. That provision concerns offers of fresh evidence and must be read in the light of Article 66(2) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see judgment of 12 September 2007 in Case T‑448/04 Commission v Trends and Others, not published in the ECR, paragraph 52 and the case-law cited).
33 In this case, the offers of evidence made by the applicant in the reply seek to respond to arguments concerning the inadmissibility of the action which the Commission raised in the defence and, more particularly, to arguments relating to whether the applicant’s market position was substantially affected by the aid at issue. Consequently, the time-bar rule in Article 48(1) of the Rules of Procedure does not apply to them, so that the evidence in question is admissible.
34 The question whether the applicant has locus standi under Article 230 EC should be examined in the light of those considerations.
35 It is apparent from recital 157 of the contested decision that UOP is one of IFP’s and Axens’ seven main competitors on the market for refining and petrochemicals technologies and one of the many competitors of IFP and Prosernat on the market for gas treatment and sulphur recovery technologies. However, the mere fact that the contested decision may have some impact on the competitive relationships existing on the relevant markets and that the applicant was in a competitive relationship with IFP and its subsidiaries does not mean that the applicant’s competitive position is substantially affected (see, to that effect, Spain v Lenzing, paragraph 24 above, paragraph 32). The applicant must also demonstrate the extent of the detriment to its market position (see, to that effect, Case C‑106/98 P Comité d’entreprise de la Société française de production and Others v Commission [2000] ECR I‑3659, paragraph 41, and Spain v Lenzing, paragraph 24 above, paragraph 33).
The applicant’s allegedly unique competitive position vis-à-vis the beneficiaries of the aid
36 In order to show that it is substantially affected by the aid which is the subject of the contested decision, the applicant argues, in the first place, that it is in ‘a unique competitive position vis-à-vis the beneficiary’.
37 At the outset, it should be noted that, according to the applicant, a ‘particularly’ relevant market to be taken into account in considering the admissibility of the action is the market for aromatics process licensing. It also asserts that the contested decision shows that it is a major competitor of Prosernat in, inter alia, the market segment for gas sweetening technologies.
38 So far as the gas sweetening technologies field is concerned, the applicant merely refers to recital 157 of the contested decision, without however substantiating that assertion either in the application or the reply or in its observations on IFP’s statement in intervention. As has been seen in paragraph 35 above, recital 157 lists Prosernat’s competitors in the field of gas sweetening and other technologies. UOP is among Prosernat’s many major competitors including seven gas treatment equipment suppliers, five gas sweetening technology licensees (including UOP) and seven sulphur specialists. The conclusion must be that the applicant has not established that it is in a distinct situation as compared with the other operators in that market segment.
39 Next, the applicant advances data concerning the competitive structure of the aromatics licensing market (Annex C.1), the competitive situation in the hydrocracking licensing market (Annex C.2) and the competitive situation in the hydrotreating licensing market (Annex C.3). It submits that the aid at issue has had a detrimental effect on its competitive position on each of those markets, as is shown by the development of its market shares on those markets during the years 2003 to 2009.
40 That evidence does not have sufficient probative value and thus does not persuade the Court that the applicant’s position was substantially affected by the aid at issue. Annexes C.1 to C.3 were produced to the Court at the stage of the reply without any indication as to the source of the data which they contain and without any corresponding explanation as to the method used to establish them. Each annex contains two tables each of which bears a heading: the first table is in the form of a coloured bar chart and the second contains percentages. Apart from the headings to the tables, Annexes C.2 and C.3 do not contain any explanatory text; nor do they specify the source of the data shown therein. By contrast, Annex C.1 contains two supposedly explanatory notes. The first is a footnote in which it is simply stated that the table showing percentages has been compiled by reference to a single step, which is the most important step in an aromatics complex. The second note, located under the percentages table, states that the table shows the ‘win/loss’ record of Axens and UOP as regards a given number of calls for tender launched over a given period and that certain ‘minor’ points have been excluded. No source is indicated. Moreover, the contested decision does not give details of any of the markets mentioned in the three annexes.
41 In that regard, it must be borne in mind that, in order to assess the probative value of a document, it is necessary to determine whether the information it contains is credible and to take into account, inter alia, the provenance of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (see Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraph 121 and the case-law cited). In view of the fact that there is no reference source for the data in question, the fact that the lack of correlation between the tables in each of the annexes concerned is not explained, the absence of any explanation regarding the data excluded from the tables and the fact that it is impossible to verify the data in the tables, those annexes cannot be considered to have sufficient probative value.
42 Finally, the Court observes that, even if the data in Annexes C.1 to C.3 were to be regarded as sufficiently established, the market shares, as relied on by the applicant in relation to ‘the various markets where customers worldwide seek process technology licences and purchase catalysts’, would not on their own be capable of showing that the applicant was substantially affected by the aid in question.
43 Thus, it can be seen from Annex C.1 that Axens had a large market share as soon as it entered the aromatics segment in 2005 and that Axens’ and UOP’s market shares have varied since that date [confidential]. In any event, the fact remains that the only reference to aromatics in the contested decision – in recital 85 thereof – summarises the arguments that the applicant had put forward during the administrative procedure. Accordingly, it is not established that Axens and UOP are the only players in that market segment (see paragraph 35 above), which is the premiss underpinning the data put forward by the applicant, in particular the second table, which shows the win/loss rate between Axens and UOP for 30 tenders between 2003 and 2009. In any event, the applicant is not able to establish that it is because of the aid which is the subject of the contested decision that it was unsuccessful in the tenders concerned. As the Commission rightly points out, there could be other reasons behind those losses.
44 For the sake of completeness, it must be observed that the figures in point 11 of the reply, which represent the proportion of revenue which UOP derives from its aromatics process licensing, assuming that those figures can be verified, show that the proportion of UOP’s revenue deriving from sales of those licences increased (from 18% in 2003 to [confidential] in 2007), which is an indication that the aid at issue has not affected its activities in the aromatics field.
45 It can be seen from the tables in Annex C.2 that Axens experienced fluctuations in its market share in the hydrocracking process licensing segment [confidential]. With regard to new units (which are dealt with in the second table), Axens’ market share was 0% in 2004 [confidential]. Over the same period, UOP’s market share fluctuated [confidential]. In 2004 and 2005, while Axens’ market share increased significantly (in both tables), UOP’s remained stable. Finally, the applicant itself states that hydrocracking licences represent [confidential] of the total technology licensing revenue (7% in 2004 and [confidential] % in 2007).
46 The tables in Annex C.3 indicate that UOP dominates the hydrotreating licensing segment. Even though Axens’ market share changed considerably [confidential], it remained markedly lower than that of UOP. According to the first table headed ‘Hydrotreating Process Licensing Share of Demand’, UOP held the largest share of the market segment [confidential] (which is also confirmed by the second table).
47 Although it is possible that Annexes C.2 and C.3 provide details which relate to the gas sweetening market, referred to in paragraph 35 above and point 11 of the reply, it falls to the applicant to make that connection and it is not for the Court to seek and identify in the annexes the arguments on which it may consider the action to be based (see, to that effect, Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94).
48 Furthermore, the data in the tables in Annexes C.1 to C.3 are based only on the volume of licences and not on the value thereof. Consequently, the Court is not in a position to assess the significance of each licence won or lost by an operator. The applicant’s assertion that tenders in the aromatics field are infrequent, but always significant in terms of value, is not confirmed, contrary to its contention, by either Annex C.1 or the pleadings submitted by the intervener.
49 It is apparent from the foregoing considerations that the applicant has not shown that the aid which is the subject of the contested decision has had negative effects on its market shares or that the contested decision is likely substantially to affect its position on the market in issue.
50 The other elements relied on by the applicant do not call that finding into question.
51 Concerning firstly the assertion that the contested decision contains numerous references to the applicant’s distinct position on the market, the applicant mentions, by way of example, recitals 104 and 203 of the decision. The Court notes that recital 104 contains a summary of the comments of the French Republic, which considers the applicant to be dominant on the refining and petrochemicals market. As the Commission rightly points out, recital 203 refers to ‘competitors’ (in the plural) of the beneficiaries of the aid at issue and not only to UOP, even though it mentions UOP’s large world market share. Thus those recitals do not support the applicant’s assertion.
52 Nor do other recitals of the contested decision show that the applicant has the unique position it claims to have. First of all, the Commission describes UOP’s role in the administrative procedure (recitals 5, 9 and 12). It then summarises the comments submitted by UOP in its capacity as an interested party (recitals 84 to 93) and the French Republic’s response to those comments [confidential] (recitals 95 to 104 [confidential]). In the context of its assessment of the measures in question (recitals 115 to 206), the Commission mentions UOP in only six recitals, two of which have already been considered in paragraphs 35 and 51 of this judgment. Recital 148 compares IFP’s deficit with a figure put forward by UOP. Recitals 163 and 182 refer to a request from UOP that the Commission take a decision and to an argument put forward by UOP which the Commission did not accept. Lastly, recital 204 cites UOP as an example of one of the competitors of IFP and Axens which also enjoy State support for research.
53 With regard, secondly, to the argument which the applicant puts forward in its observations on the statement in intervention that the negative impact of State aid is particularly acute on markets which operate on the basis of invitations to tender, since the participation of a State aid beneficiary will influence the final licence price even if the beneficiary is not ultimately successful, the Court finds that it is not supported by any specific facts. Even if that argument is correct, the applicant does not establish any link between the specific measure at issue and the alleged substantial effect on its position on the relevant market. Thus, as regards the example of the tender of PKN Orlen in the aromatics field, which is mentioned in point 13 of the applicant’s observations on the statement in intervention, the applicant has not even established that Axens competed in the tender, its arguments in this respect representing no more than a contrario inferences drawn from arguments in the statement in intervention.
54 Thirdly, the Court observes that the argument put forward by the applicant in its observations on the statement in intervention that it has a special market position on the isomerisation C4 and C5/6 process market and on the reforming (platforming) continuous regeneration and hydrocracking markets is based on a mere interpretation of arguments raised by the intervener. In its statement in intervention, IFP contends that the applicant is dominant in relation to several processes.
55 The arguments relating to the isomerisation C4 and C5/6 process and catalyst regeneration are not substantiated by any specific evidence. In any event, the applicant does not establish a link between the measure which is the subject of the contested decision and the alleged substantial effect on its position on the markets alleged to be relevant.
56 With regard, fourthly, to the evidence before the Court which the applicant claims supports the conclusion that it is individually concerned by the contested decision, the Court does not find that evidence persuasive either. Annexes A.6 and A.7 to the application give details of the range of technologies offered by UOP, but do not describe the competitive situation in the aromatics segment apart from a statement (on page 76) that UOP is the world leader in aromatics technologies. Annex B.7 to the defence contains the French’s Republic’s reply to the questions raised by the Commission concerning the innovation process on the market concerned. According to the French Republic, the petrochemical technologies market, in particular aromatics, evolved significantly from 2004 onwards and the ‘opening-up of the market’ obliged UOP to improve its offer in order to remain competitive (page 119). Thus no link has been established between the aid at issue and the market entry of IFP and Axens, or between that aid and UOP being obliged to improve its offer.
The alleged detrimental effect of the R&D aid at issue on the applicant’s competitive position
57 In the second place, the applicant submits – again with a view to showing that its market position was substantially affected and on the premiss that R&D is particularly important in the area of the process licensing and catalyst industry – that the aid which is the subject of the contested decision had a ‘direct effect on … [its] distinct competitive position’. In the reply, it states that ‘the State aid strengthens the competitive position of IFP which, at least in the area of aromatics where only the applicant and Axens are active, necessarily correlates with a weakening of the applicant’s competitive position’. It must first of all be noted, as has been established above, that neither the contested decision nor the evidence adduced by the applicant shows that Axens and UOP were the only undertakings active on any market or market segment.
58 Next, it should be observed that it is common ground between the parties that R&D activities are particularly important in the area referred to in paragraph 57 above. The Commission notes, in recital 201 of the contested decision, that the proportion of the aid beneficiaries’ turnover accounted for by R&D expenditure is particularly high and much higher than the figure for the sector. As the applicant points out, it is in fact apparent from recital 190 of the contested decision that the number of projects carried out by IFP for Axens and Prosernat in their respective areas of activity increased by 41% between 2003 and 2006. However, that does not mean that the applicant’s competitive position was affected differently in comparison with that of other competitors of Axens and Prosernat or that the number of R&D projects carried out by the beneficiaries is related to the aid. The same is true of the argument concerning the increase in Axens’ revenues from process licensing during that period, an issue considered in paragraph 64 below.
59 Finally, it is appropriate to examine the other arguments and evidence concerning whether the applicant’s position was affected as a result of the aid for R&D activities.
60 Firstly, it is apparent from recital 200 of the contested decision that the expenditure and staff allocated to R&D by IFP and its subsidiaries Axens and Prosernat in the subsidiaries’ exclusive fields of activity increased over the period 2003 to 2006, as the applicant notes. The Commission points out however that that increase occurred despite the amount of aid being reduced by 41% over that period. The applicant is incorrect when it maintains that recital 200 shows that the aid affected it significantly and individually.
61 Secondly, the applicant submits that Annex B.8 to the defence ‘cited to the direct effect R&D aid has on [its] distinct competitive position’. That annex contains a letter submitted by the applicant during the administrative procedure in which it points out the importance of R&D activities in the hydrocarbons industry and gives an estimate of the proportion that those activities represent of the revenues of the various competitors on the process technology and catalyst production markets, as well as a description of the risks which legislative developments entail for that type of activity in the petrochemical sector. In that letter, the applicant asserts that the grant of aid has a more distortive effect in that sector but does not explain the particular impact on its own situation. It follows that Annex B.8 does not substantiate its argument.
62 Thirdly, the applicant mistakenly refers to recital 152 of the contested decision. That recital states that ‘IFP benefits, for its commercial activities with the exception of the field of activity of its subsidiary Beicip-Franlab, from partial public financing, which constitutes a selective advantage insofar as it is granted to only one enterprise’.
63 On the assumption that the applicant intended to refer to recital 154 of the contested decision, in which the Commission states ’that any contribution to activities in the fields of activity of Axens and Prosernat strengthens the competitive position of IFP and its subsidiaries and potentially involves a distortion of competition’, the Court refers to the observations made in paragraph 58 above.
64 Fourth and finally, the applicant’s argument that Axens’ process licensing sales increased by 72% between 2004 and 2006 cannot succeed either (see Annex A.12 pages 211, 277 and 347). As is apparent from paragraph 57 above, the applicant has not established that Axens and itself were the only undertakings present on the market. Accordingly, that argument does not show that the applicant’s market position was substantially affected in a different way from Axens’ other competitors. The Court observes in this connection that the applicant does not maintain that this was the case for the whole area of process licensing, but only for aromatics (see also paragraphs 39 to 44 above).
65 It follows from all the foregoing considerations that the applicant has not established that its market position was substantially affected by the aid which is the subject of the contested decision.
66 Accordingly, the applicant cannot be regarded as individually concerned by the contested decision.
67 Consequently, the action must be dismissed as inadmissible and there is no need to adjudicate on whether the applicant is directly concerned by the contested decision or to examine the plea that the action is inadmissible because it was brought out of time.
Costs
68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs incurred by the Commission and the intervener, in accordance with the forms of order they have sought.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. UOP Ltd shall bear its own costs and pay those incurred by the European Commission and IFP.
Luxembourg, 7 March 2013.