Provisional text
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 21 March 2024 (1)
Case C‑224/23 P
Penya Barça Lyon: Plus que des supporters (PBL),
Issam Abdelmouine
v
European Commission
(Appeal – State aid – Alleged aid in favour of Paris Saint-Germain FC – Regulation (EU) 2015/1589 – Article 1(h) – Article 24(2) – Concept of ‘interested party’ – Scope of the meaning of ‘interest’ of a person, undertaking or association of undertakings – Need for a causal link between the interests of those parties and the granting of the aid)
I. Introduction
1. Mr Issam Abdelmouine is a proud fan of FC Barcelona and a ‘socio’ (member) of that football club. Together with Penya Barça Lyon: Plus que des supporters (‘PBL’), a French association of football fans of FC Barcelona, he filed a complaint with the European Commission to allege unlawful State aid from France in the form of the non-enforcement of certain financial fair play rules of the Union of European Football Associations (‘UEFA’). He argued that that lack of enforcement enabled Paris Saint-Germain FC to sign the football player Mr Lionel Messi from FC Barcelona.
2. The Commission responded to that complaint by a letter in which it explained that that correspondence could not be treated as a ‘formal complaint’, (2) since Mr Abdelmouine lacked the status of an ‘interested party’, within the meaning of the Procedural Regulation. (3)
3. In the judgment of 8 February 2023, PBL and WA v Commission (T‑538/21, not published, EU:T:2023:53) (‘the judgment under appeal’), resulting from the annulment procedure initiated against that letter, the General Court upheld the Commission’s position that Mr Abdelmouine could not be recognised as an ‘interested party’, within the meaning of the Procedural Regulation.
4. In the present appeal, the Court of Justice is tasked with clarifying the requirements underlying the concept of an ‘interested party’ for the purposes of the State aid complaints procedure.
II. Background to the case
A. Complaint to the Commission and the letter at issue
5. The facts and legal background relevant for the present appeal can be summarised as follows.
6. On 8 August 2021, FC Barcelona announced the departure of Mr Lionel Messi to Paris Saint-Germain FC.
7. On the same day, Mr Abdelmouine complained to the Commission about the existence of allegedly unlawful State aid to Paris Saint-Germain FC by the Ligue de Football Professionnel (French Professional Football League) and its supervisory administrative authority in the form of a temporary suspension of enforcement by the Fédération Française de Football (French Football Federation) of the UEFA Club Licensing and Financial Fair Play Regulations. (4)
8. According to Mr Abdelmouine, that decision of non-enforcement resulted in a distortion of the rules applied by the professional football bodies in Spain and France, which affected competition and enabled Paris Saint-Germain FC to recruit Mr Lionel Messi.
9. By letter of 1 September 2021, the Commission replied to Mr Abdelmouine’s complaint (‘the contested decision’). (5)
10. In the relevant part, the contested decision reads as follows:
‘According to Article 24(2) of [the Procedural Regulation], formal complaints can only be submitted by interested parties. Interested parties are any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations …
You have filed the complaint in the name of a member (socio) of [FC Barcelona]. A member is neither a competitor of Paris Saint-Germain FC or a trade association. While the definition of an ‘interested party’ is not limited solely to competitors of the beneficiary of the aid, purely general or indirect interests of a person in a measure does not qualify that person as an interested party, as such elements do not disclose any real affectation of its situation. For example, the status of a shareholder of the company competing with an aid beneficiary does not confer on that person an interest of its own and distinct from that of the company concerned. The shareholder can defend his interests in relation to that measure only be exercising his rights as a member of that undertaking, which itself may have the right to lodge a complaint. The status of an interested party is not extended to all persons who may be affected by a reduction in an undertaking’s annual net profit or loss. The situation of the members (‘socios’) of [FC Barcelona], which is organised as a not-for-profit association, is similar in this regard to that of shareholders of a company, as they could argue only an indirect interest in the measure at stake, through [FC Barcelona].
Since you therefore do not qualify as an interested party, your submission cannot be treated as a formal complaint within the meaning of Article 24(2) of [the Procedural Regulation].’
B. Proceedings before the General Court and the judgment under appeal
11. By application of 2 September 2021, PBL and Mr Abdelmouine (together, ‘the appellants’) brought an action under Article 263 TFEU before the General Court.
12. By that action, those parties sought the annulment of the contested decision and an order to enjoin the Commission, inter alia, to initiate an investigation against France for unlawful State aid to Paris Saint-Germain FC in the context of its national and European competitions. (6)
13. The single plea in law put forward at first instance alleged the breach of Article 1(h) of the Procedural Regulation. Therein, the appellants also argued that the Commission had wrongly equated the status of shareholder and ‘socio’ and thereby arrived at an incorrect interpretation of the concept of an ‘interested party’. (7)
14. In the judgment under appeal, the General Court, first, declared the action for annulment to be inadmissible in so far as it was brought by PBL, given that there was no evidence that the complaint had been filed also on behalf of that party. (8)
15. Second, the General Court examined the four types of interest claimed by Mr Abdelmouine, namely: (i) the direct patrimonial interest in relation to FC Barcelona’s financial situation; (ii) the interest based on the values of football and the defence of sport; (iii) the consequence of distorted competition for the way FC Barcelona is organised; and (iv) the interest in preserving the rights of the ‘socios’ in the event of a change in the status or structure of FC Barcelona.
16. The General Court concluded that none of the interests relied on by Mr Abdelmouine in support of his status as an ‘interested party’, within the meaning of Article 1(h) of the Procedural Regulation, may lead to the annulment of the contested decision. (9)
17. Third, the General Court declared Mr Abdelmouine’s argument that his status as a ‘socio’ could not be equated with that of a shareholder of a company as inoperative. It explained that the analogy drawn in the contested decision by the Commission was ancillary to the latter’s declaration that Mr Abdelmouine did not constitute an ‘interested party’. (10)
18. In the light of the above conclusions, the General Court dismissed the action for annulment and ordered the appellants to pay the costs.
III. Procedure before the Court of Justice
19. By an appeal lodged on 11 April 2023, the appellants request that the Court set aside the judgment under appeal in its entirety and grant the form of order sought at first instance, in its final version.
20. In its response, lodged on 14 July 2023, the Commission requests that the Court dismiss the appeal and order the appellants to pay the costs of the proceedings.
IV. Analysis
21. By the contested decision, the Commission informed Mr Abdelmouine that his complaint could not be treated as a ‘formal’ complaint within the meaning of Article 24(2) of the Procedural Regulation. According to the Commission, that is because Mr Abdelmouine lacked the quality of an ‘interested party’, as it appears in Article 1(h) of that regulation. However, the contested decision also explains that the information provided by Mr Abdelmouine would be registered as ‘general market information’. (11)
22. The Commission did not explain what consequences would follow from the refusal to treat his correspondence as a ‘formal’ complaint, but instead as ‘general market information’. Nor does the contested decision contain any statement about the question of whether the Commission considers that (unlawful) State aid is present, or whether it intends to open the formal investigation procedure.
23. By their action for annulment, the appellants thus essentially challenge the refusal of the Commission to characterise Mr Abdelmouine as an ‘interested party’.
24. To my mind, that challenge opens two questions. First, what consequences does that refusal entail for Mr Abdelmouine? Second, was Mr Abdelmouine wrongly refused the status of an ‘interested party’?
25. I will deal with those questions in turn. For that purpose, I will first briefly explain the procedural rights attributed to ‘interested parties’ and those granted to persons holding no such status (A). I will then examine the conditions for obtaining the status of an ‘interested party’, as it appears in Article 1(h) of the Procedural Regulation (B). Lastly, I will consider whether the General Court erred in denying Mr Abdelmouine ‘interested party’ status (C).
A. Procedural rights of ‘interested parties’ and other persons
26. The obligation of the Commission to investigate aid which has the potential of undermining effective and undistorted competition between undertakings (and Member States) on the internal market follows directly from the Treaties.
27. Therefore, whenever the Commission receives information alleging a potential breach of Article 107 TFEU, it should, under Article 108(3) TFEU, examine that information and decide whether it requires any further action, including the opening of the procedure laid down in Article 108(2) TFEU. (12)
28. That obligation arises irrespective of whether it is the victim of distorted competition on the internal market that brings certain information to the Commission’s attention, or a person that may be regarded as having more ‘common’ or ‘general’ concerns with regard to the granting of allegedly unlawful aid.
29. At the same time, Article 108 TFEU grants the Commission the exclusive competence to oversee the proper implementation of the rules on State aid and provides that it performs that role ‘in cooperation with the Member States’.
30. That has led the Court to conclude that the procedure for reviewing State aid involves, principally, only the Commission and the Member States: an investigation into the grant of aid is initiated against the State and addressed to it, and not against the beneficiary of that aid or other parties affected by it.(13)
31. Thus, in principle, third parties are excluded from the State aid procedure, especially from its preliminary stage, before a decision is adopted as to whether an investigation under Article 108(2) TFEU must be opened.
32. That exclusion entails that neither the beneficiary of an aid measure nor any other entity affected by it could be deemed to have any particular role in the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU. (14)
33. Third parties were deemed to hold certain procedural rights only at the level of the formal investigation procedure, initiated on the basis of Article 108(2) TFEU. As this stage of the procedure is ‘designed to enable the Commission to be fully informed of all the facts of the case’, that institution is obliged to give any party ‘concerned’ the possibility to submit comments to it. (15)
34. However, despite the Treaty-based obligation of the Commission to investigate any possible case of unlawful aid, no procedural rights of interested parties existed at the preliminary stage.
35. It was only in 1998, after the judgment in Commission v Sytraval and Brink’s France, that third parties were first accorded certain procedural rights outside the framework of the formal investigation procedure. (16)
36. That judgment also acted as the initiative, during the legislative procedure underlying Regulation No 659/1999 (17) (the predecessor of the Procedural Regulation), (18) to officially attribute to those parties the specific right to file a complaint with the Commission ‘to inform [the latter] of any alleged unlawful aid.’ (19)
37. That right of complaint is accompanied by certain procedural rights granted by the Procedural Regulation at the preliminary stage of the procedure.
38. For example, when filing a complaint, Article 24(2) of the Procedural Regulation requires that the Commission communicate with the complainant. That requirement entails that, if it considers, on the basis of the information provided in the complaint, that there are prima facie insufficient grounds for opening the formal investigation procedure, the Commission is under an obligation to inform the interested party of that decision. After conveying that position, the Commission must, further, grant the interested party time to respond and potentially contribute additional information. Finally, the Commission is obliged to send, to the ‘interested party’, a copy of the decision on a case concerning the subject matter of the complaint.
39. Those rights were further strengthened in the case-law.
40. Thus, especially where the Commission decides not to initiate the formal investigation procedure under Article 108(2) TFEU because it considers that the measure which prompted the complaint does not constitute aid incompatible with the internal market, or because that aid is deemed to be justified, the complainant has been recognised as having standing to challenge the resulting decision on the basis of the fourth paragraph of Article 263 TFEU. The Court considered that possibility of bringing proceedings to be justified by reason of the procedural rights which a third party would have enjoyed had the formal procedure been initiated. (20)
41. The Procedural Regulation thus opens a procedural avenue for third parties to engage, at least to some extent, with the Commission before the initiation of the formal procedure under Article 108(2) TFEU. (21)
42. However, the Procedural Regulation does not afford procedural rights to any third party that submits information to the Commission regarding alleged State aid. Rather, the Procedural Regulation inherently distinguishes between ‘interested parties’ and (what I shall call) ‘other informants’.
43. According to the first subparagraph of Article 12(1) of the Procedural Regulation, the Commission may on its own initiative examine information regarding alleged unlawful aid from whatever source. Conversely, the second subparagraph of that provision provides that the Commission shall examine without undue delay any complaint submitted by ‘any interested party’, if that complaint is submitted in accordance with Article 24(2) of the Procedural Regulation. (22)
44. Article 24 (2) of the Procedural Regulation reserves the right of complaint to ‘interested parties’.
45. Specifically, that article provides that ‘any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been set out in an implementing provision … and shall provide the mandatory information requested therein’. (23)
46. Article 24(2) of the Procedural Regulation accordingly lays down two practical requirements for the filing of a complaint with the Commission: (i) the need to qualify as an ‘interested party’; and (ii) the need to complete a standard form alongside the provision of certain information to show the ‘prima facie’ existence of unlawful aid or the misuse of aid. (24)
47. Thus, the concept of an ‘interested party’ grants to that type of informant certain procedural rights which ‘other informants’ do not enjoy.
48. The result is the following: by denying Mr Abdelmouine the status of an ‘interested party’ within the meaning of the Procedural Regulation, the Commission also deprived that party of the procedural rights provided for in that regulation, even though this does not relieve the Commission of its obligation to investigate the information provided about the alleged State aid.
B. What is an ‘interested party’?
49. The definition of an ‘interested party’ is laid down in Article 1(h) of the Procedural Regulation.
50. That provision, which maintains the wording of Regulation No 659/1999, codifies the Court’s case-law on the concept of a ‘party concerned’, within the meaning of Article 108(2) TFEU. (25)
51. It states that an ‘interested party’ is ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’.
52. The Court has recognised that while that definition certainly encompasses competing undertakings of the beneficiary of the aid, (26) its wording is such that it may cover ‘an indeterminate group of persons’. (27)
53. The qualifying criteria circumscribing that theoretically open list of persons is the question of whether the person’s ‘interests might be affected by the granting of aid.’ (28)
54. Since the present case concerns a party which is not an undertaking competing with the undertaking to which aid was allegedly granted, it is the meaning of the concepts of ‘interest’ and of being ‘affected’ in Article 1(h) of the Procedural Regulation that are relevant for answering the question of whether Mr Abdelmouine holds the status of an ‘interested party’.
1. A matter of interest
55. What interests may render a natural or legal person an ‘interested party’? The Procedural Regulation is silent on that issue.
56. In one line of case-law, the General Court has taken the position that a person having a ‘purely general or indirect interest’ with regard to a particular aid measure cannot qualify for the status of an ‘interested party’. (29) That line of case-law does not explain what is understood by ‘purely general’ interests. However, it seems to draw inspiration from the case-law relating to individual concern under the fourth paragraph of Article 263 TFEU. (30) That, to my mind, is incorrect.
57. The concept of ‘interest’, in so far as it is linked to the status of an ‘interested party’ in the State aid procedure, is detached from that party’s capacity to challenge a decision of the Commission, which it acquires under the formal investigation procedure laid down in Article 108(2) TFEU. In order to have standing to challenge such a decision, the ‘interested party’ needs to demonstrate direct and individual concern – that capacity does not follow directly from its treatment as an ‘interested party’ under the Procedural Regulation. (31)
58. Direct and individual concern is only presumed if the interested party seeks to challenge a decision not to initiate the formal procedure (see point 40 of the present Opinion).
59. In a different line of case-law, however, the General Court does not make the status of an ‘interested party’ conditional on the existence of a personal, as opposed to a general, nature of a particular interest. (32)
60. I consider that approach to be more consistent with the purpose of the status of an ‘interested party’ in the State aid procedure.
61. The complaint procedure is, as the Procedural Regulation itself provides, ‘an essential source of information for detecting infringements of the Union rules on State aid’. (33)
62. In that respect, it should not matter what kind of subjective interest prompted a complainant to address the Commission alleging the presence of unlawful aid. (34)
63. The information which the Commission receives from interested parties enables it to potentially uncover and investigate whether an aid measure creates harmful effects on the internal market. Therefore, even where a complainant’s interests are not aligned with the interests of, for example, that of the aid beneficiary, or even if they are not economic interests at all, what matters is the public interest, shared by all EU law subjects, the oversight of which is entrusted to the Commission, to prohibit any aid that does not conform to the conditions of competition on the internal market.
64. That open approach to the scope of what ‘interests’ are covered by the Procedural Regulation is reflected, most prominently, in the Court’s judgment in Ja zum Nürburgring v Commission. (35)
65. There , the Court explained that the interest of ‘an association that defends the interests of German motor sport in relation specifically to the Nürburgring race track … [whose] central objective is to ensure the operation of that race track under economic conditions oriented towards the public interest to allow access to it for sporting and other events’ (36) is sufficient to satisfy the ‘interest’ criterion.
66. There is therefore no reason to consider that the interest in maintaining a certain organisational and functional structure as regards sports organisations, or even the wider interest of ensuring fairness in a particular sport, could not be taken into consideration as an interest sufficient to qualify a party as an ‘interested party’, within the meaning of the Procedural Regulation.
67. It follows that the question of which interests may be affected is quite simple: any interest may be protected by means of filing a complaint against the granting of aid that may have an effect on the conditions of competition on the internal market.
68. Nevertheless, given that the status of an ‘interested party’ bestows certain rights on a party, and taking into consideration that the Procedural Regulation did not intend to grant such rights to everyone, but instead sought to limit them to a certain category of persons, the circle of persons who can rely on that status must necessarily be limited.
69. As I will explain, the real filtering element is not the type of interest involved, but rather the requirement that that interest be affected. In other words, the question is whether a causal link between the effects on the natural or legal person’s interest(s) and the aid measure at issue may be established.
2. A matter of affectation
70. Article 1 (h) of the Procedural Regulation makes the status of an ‘interested party’ conditional on the possibility that that party’s interests may be affected by the granting of the aid.
71. Traditionally, the case-law has understood that requirement as necessitating that the aid measure in question is likely to have a ‘real’ or ‘specific’ effect on the situation of the natural or legal person at issue or that of the persons it represents. (37)
72. To my mind, those expressions are mere synonyms for the requirement of a causal link between the aid measure at issue and the effects claimed.
73. T he use of the word ‘by’ in Article 1(h) of the Procedural Regulation implies that the person seeking to claim the status of an ‘interested party’ must establish that the adverse effect on the interest involved positively results from the particular measure that it takes issue with. (38)
74. Moreover, given the use of the modal verb ‘might’ in the text of that provision, the status of the ‘interested party’ does not depend on whether the person’s interests are actually affected, but extends also to a potential effect that may arise from the aid measure at issue. (39)
75. In practice, however, that kind of potential attribution may be difficult to establish with any degree of certainty. Multiple measures (some of which are regulatory) or effects (originating in upstream/downstream measures or acts) may turn out to create adverse consequences for the entity at issue.
76. In those circumstances, I suggest that the above positive attribution be supplemented by a negative attribution assessment.
77. That means that the Commission must assess whether the measure complained of remains the source of the alleged adverse effects, even where one eliminates any effects which, in reality, derive from other possible sources. (40)
78. To my mind, the case-law already (implicitly) recognises that type of approach. (41)
79. For example, in its judgment in Solar Ileias Bompaina v Commission, the Court found that a producer of electricity from renewable energy sources which was recognised to have been negatively affected by a measure designed to reduce feed-in tariffs for such producers, (42) could not sufficiently correlate those effects with alleged aid to suppliers of electricity, which were not impacted by that reduction and therefore allegedly benefited from a more favourable competitive position. (43)
80. Similarly, in its recent order in CAPA and Others v Commission, the Court was faced with claims by a cooperative of fishermen that (operating) aid to offshore windfarms had the effect of damaging the fishing activities of its members. Following the General Court’s assessment, the Court of Justice held that the alleged effects on the appellant’s fishing activities (if any) (44) were not attributable to the aid at issue but resulted from the decisions of the French authorities to regulate shipping and fishing activities in the vicinity of those windfarm sites. (45)
81. Accordingly, I consider that the right to file a complaint, as contained in Article 24(2) of the Procedural Regulation, along with the resulting procedural rights, is subject to the requirement that an aspiring complainant establish that the (adverse) effects claimed result from the aid measure at issue.
82. Where that cannot be established by the natural or legal person at issue, that party also cannot rely on the procedure and rights provided for by and linked to the status of an ‘interested party’, within the meaning of Article 1(h) of the Procedural Regulation.
C. The appellant’s status
83. The Court’s jurisdiction on appeal is confined to findings of law made in respect of the pleas argued at first instance. (46)
84. In the present case, Mr Abdelmouine’s grievance is limited to the Commission’s conclusion that he does not constitute an ‘interested party’ within the meaning of Article 24(2) of the Procedural Regulation, and therefore cannot file a complaint under that regulation over the alleged State aid by France to Paris Saint-Germain FC. (47)
85. Did the Commission err in that assessment? The short answer to that question is ‘no’. Accordingly, I do not consider that the judgment of the General Court should be overturned.
86. I do, however, consider that the argumentation underlying that judgment should be substituted, in part, at the level of the applicable legal standard to clarify the openness of the case-law for any type of interest, circumscribed only by the need for a causal link between the effects on the natural or legal person’s interests and the aid measure at issue.
87. In the judgment under appeal, the General Court rejected the four elements on the basis of which Mr Abdelmouine had sought to establish whether his interests were affected by the alleged aid measure at issue. (48)
88. Those elements were claimed to be: (i) the direct patrimonial interest in relation to FC Barcelona’s financial situation, which might result in his financial liability and that of other ‘socios’ in the event of that club’s bankruptcy; (49) (ii) the interest based on the values of football and the defence of sport as a common good; (50) (iii) the consequence of distorted competition for FC Barcelona’s form of organisation, his moral right as a ‘socio’ and the creation of legal and economic uncertainty for him and other ‘socios’, reflected in a restriction of the freedom of association; (51) and (iv) the interest in preserving the rights of the ‘socios’, which would be threatened in the event of a change in the status or structure of FC Barcelona to a company with share capital. (52)
89. Separately, the General Court rejected the argument that Mr Abdelmouine’s interests could not be equated to those of a shareholder on the basis that the relevant part of the contested decision constituted ancillary reasoning not capable of overturning the main finding that he did not satisfy the conditions to obtain ‘interested party’ status. (53)
90. While Mr Abdelmouine does not specifically refer to the relevant paragraphs of the judgment under appeal, (54) it is my understanding that he takes issue with the General Court’s conclusion on all of the above points.
91. However, contrary to what Mr Abdelmouine in effect argues, in the judgment under appeal, the General Court did not rule out the possibility that, in his capacity as a ‘socio’, Mr Abdelmouine could rely on the interests accorded to him by the Statutes of FC Barcelona, or of any other interests subjectively assumed by him. (55)
92. As I have explained, any interest – personal or general – may be covered by the scope of the concept of an ‘interested party’, if those interests might be affected by the granting of the aid. That includes Mr Abdelmouine’s assumed interest, as a ‘socio’, in FC Barcelona’s transfer policies as much as his more general interest in the equal conditions of competition in football in general.
93. The question is whether Mr Abdelmouine was able to establish, on the basis of the evidence presented to the General Court, that those interests might be affected by the granting of the (alleged) aid at issue.
94. That, the General Court denied. In the judgment under appeal, it rejected Mr Abdelmouine’s claims as either inadmissible or unfounded on the basis that: (i) he had not been able to establish that the relevant articles of the Statutes of FC Barcelona granted him the rights that he claimed would be affected by the granting of the aid; (56) (ii) he was not able to establish a link between the alleged affectation of his interest and the granting of the aid; (57) and (iii) that his explanations were insufficiently clear as to how his alleged interests were affected. (58)
95. Given that Mr Abdelmouine fails to claim a distortion of the evidence in relation to those points, that conclusion cannot be reviewed by the Court.
96. In the light of the above considerations, it is without object whether or not Mr Abdelmouine’s position can or cannot be equated to that of a shareholder of a company with share capital: even if his criticism of the judgment under appeal were successful on that point, it is not capable of rendering him an ‘interested party’, within the meaning of the Procedural Regulation. (59)
97. Accordingly, the General Court did not err in its conclusion that Mr Abdelmouine is not an ‘interested party’, within the meaning of Article 24(2) of the Procedural Regulation.
98. I therefore propose to the Court that it reject Mr Abdelmouine’s third and fourth grounds of appeal as unfounded, uphold the judgment under appeal and substitute the General Court’s reasoning in part.
V. Conclusion
99. In the light of the foregoing, I propose that the Court dismiss the third and fourth grounds of appeal as unfounded.