Case T‑517/12

Alro SA

v

European Commission

(State aid — Electricity — Preferential tariffs — Decision to initiate the procedure under Article 108(2) TFEU — Action for annulment — Act not open to challenge — Aid measure fully implemented, in part, as at the date of the decision and, in part, when the action was brought — Inadmissibility)

Summary — Judgment of the General Court (Fifth Chamber), 16 October 2014

1.      Actions for annulment — Actionable measures — Acts intended to have legal effects — Concept — Conditions

(Art. 263 TFEU)

2.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Preparatory measures — Not included

(Art. 263 TFEU)

3.      Actions for annulment — Actionable measures — Measures producing binding legal effects — Commission decision to open a formal investigation procedure into a State measure in the course of implementation and to classify it provisionally as new aid — Included

(Arts 107(1) TFEU, 108(3) TFEU and 263 TFEU)

4.      Actions for annulment — Actionable measures — Measures producing binding legal effects — Commission decision to open a formal investigation procedure in respect of a State measure not yet being implemented — Not included

(Arts 107(1) TFEU, 108(2) TFEU and 263 TFEU)

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

6.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Assessment of those effects by reference to the substance of the measure

(Art. 263 TFEU)

7.      EU law — Direct effect — Primacy — Conflict between a Commission decision and a national decision — Obligations and powers of the national court before which the matter brought

(Declaration No 17 annexed to the EU and FEU Treaties)

8.      State aid — Commission decision to open a formal investigation procedure into a State measure — Action for annulment declared inadmissible by the General Court — No infringement of the right to effective judicial protection — Possibility of requesting the national court to make a reference for a preliminary ruling

(Arts 108(2) TFEU and 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

1.      Developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU. Moreover, a Member State may bring an action for annulment of a measure producing binding legal effects without having to demonstrate that it has an interest in bringing proceedings.

Where an action for annulment of an act adopted by an institution is brought by a natural or legal person, the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. Where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU.

(see paras 22, 24, 25)

2.      See the text of the decision.

(see para. 23)

3.      A Commission decision to initiate the formal investigation procedure in relation to a measure in the course of implementation and classified by the Commission as new aid necessarily alters the legal implications of the measure under consideration and the legal position of the beneficiary undertakings, particularly as regards the continued implementation of the measure. Such a decision might also be invoked before a national court called upon to draw all the consequences arising from infringement of the last sentence of Article 108(3) TFEU. Finally, it may lead the beneficiary undertakings of the measure to refuse in any event new payments or new advantages or to hold the necessary sums as provision for possible subsequent financial compensations. Businesses will also take account, in their relations with those beneficiaries, of the uncertainty of their legal and financial situation.

These independent legal effects have to be understood as binding legal effects produced by preparatory or intermediate measures, against which the beneficiaries of the alleged State aid measure cannot be ensured sufficient legal protection by the bringing of an action against the decision terminating the procedure concerning the alleged State aid.

(see paras 27-29)

4.      Unlike a decision to initiate the formal investigation procedure in respect of a measure in the course of implementation, a decision of that nature in respect of a measure which is no longer in the course of implementation does not entail independent legal effects, since its scope is not immediate, certain and sufficiently binding in relation to the Member State to which it is addressed and the beneficiary or beneficiaries of the measure under examination. It does not therefore constitute a challengeable act for the purposes of Article 263 TFEU.

In that regard, the commercial uncertainty and the perceptions of the other operators as regards the situation of the beneficiary of an aid measure, such as the applicant in the present case, cannot be regarded as binding legal effects, since they are mere consequences of fact and not legal effects that the decision to initiate the formal investigation procedure is intended to have.

(see paras 35, 39, 44, 63)

5.      See the text of the decision.

(see para. 46)

6.      See the text of the decision.

(see para. 50)

7.      See the text of the decision.

(see para. 56)

8.      See the text of the decision.

(see para. 59)