Case T‑182/10
Associazione italiana delle società concessionarie per la costruzione e l’esercizio di autostrade e trafori stradali (Aiscat)
v
European Commission
(State aid — Direct concession for the construction and subsequent management of a section of motorway — Decision to take no further action on the complaint — Action for annulment — Actionable measure — Locus standi — Individual concern — Admissibility — Definition of aid — State resources)
Summary — Judgment of the General Court (Fourth Chamber), 15 January 2013
1. Action for annulment — Actionable measures — Acts open to challenge by a complainant alleging State aid — Commission letter informing the applicant of the absence of sufficient grounds for taking a view on the case — Decision within the meaning of Article 4 of Regulation No 659/1999 — Challengeable act
Arts 108(2) and (3) TFEU and 263 TFEU; Council Regulation No 659/1999, Arts 4(13) and 20(2))
2. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding no State aid in respect of a national measure without opening the formal investigation procedure — Action brought by the parties concerned within the meaning of Article 108(2) TFEU — Admissibility — Conditions — Distinction between actions seeking to safeguard procedural rights and actions calling into question the merits of the Commission’s decision
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
3. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Action of an association responsible for protecting the collective interests of undertakings — Admissibility — Conditions
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
4. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Action of an association responsible for protecting the collective interests of undertakings — Admissibility — Requirement for a specific mandate established by the member undertakings — No specific mandate established by the member undertakings
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
5. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions — Action by an association acting in the collective interests of its members — Individual concern of the members of the association — Judicial review — Scope
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
6. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions — Action by an association acting in the collective interests of its members — Demonstration of the substantial effect of their competitive position — Assessment
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
7. State aid — Concept — Aid coming from State resources — Financing the construction of a section of motorway by increasing the toll on other motorway sections — Sums transferred directly and exclusively between private companies operating the sections at issue — Not included
(Art. 107(1) TFEU)
1. As regards State aid, the examination of a complaint necessarily gives rise to the opening of the preliminary examination stage which the Commission is obliged to close by adopting a decision pursuant to Article 4 of Regulation No 659/1999, laying down detailed rules for the application of Article 88 EC. Where the Commission finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid, it refuses by implication to initiate the formal investigation procedure, a measure which cannot be characterised as a mere provisional measure. Accordingly, once the complainant has submitted additional observations following a first letter from the Commission, informing it, in accordance with the second sentence of Article 20(2) of Regulation No 659/1999, that it considers that there are insufficient grounds for taking a view on the case, the Commission is required, in accordance with Article 13(1) of that regulation, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist; raising no objections, or initiating the formal investigation procedure. Moreover, to determine whether an act by the Commission constitutes such a decision, it is necessary to take account only of its substance and not whether or not it satisfies certain formal requirements, otherwise the Commission could avoid review by the judicature simply by failing to adhere to such formal requirements.
The Commission’s obligation to adopt a decision following the preliminary examination stage, or the legal classification of its response to a complaint, is not subject to a condition as to the quality of the information submitted by the complainant, that is, its relevance or detail. The poor quality of information submitted in support of a complaint cannot therefore relieve the Commission of its obligation to open the preliminary examination stage or to close that examination by way of a decision under Article 4 of Regulation No 659/1999. Such an interpretation does not impose an obligation of excessive examination in cases where the information supplied by the complaint is vague or concerns a very broad field.
It follows that, in a case where the Commission clearly adopted a position in so far as, in its view, the measures complained of by the complainant did not constitute State aid, it is necessary to categorise that decision as a decision adopted under Article 4(2) of Regulation No 659/1999, under which ‘[w]here the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision’. Such a decision is a measure that may be subject to an appeal.
(see paras 27-31, 33)
2. See the text of the decision.
(see paras 40-43)
3. See the text of the decision.
(see para. 48)
4. It is not necessary that an association whose tasks under its statutes include defending the interests of its members have, in addition, a mandate or specific authority established by the members whose interests it defends in order to have locus standi recognised to act before the EU courts. Likewise, in so far as bringing proceedings before the EU courts is covered by the tasks set out in the statutes of such an association, the fact that some of its members may, subsequently, distance themselves from bringing proceedings is not such as to suppress its legal interest in bringing proceedings.
(see paras 53, 54)
5. In the context of an action for annulment brought by an association in the collective interests of its members against a State aid decision, it is not for the EU courts, when considering whether the application is admissible, to make a definitive finding, as regards the individual concern of the members of the association, on the competitive relationship between the members of that association and the undertaking in receipt of the subsidy. In that context it is for the association alone to show that the alleged aid may adversely affect the legitimate interests of one or more of its members by seriously jeopardising their position on the market in question.
(see para. 60)
6. See the text of the decision.
(see paras 61, 64-66, 69, 78, 79)
7. Only advantages granted directly or indirectly through State resources are to be regarded as aid within the meaning of Article 107(1) TFEU. That provision covers all the financial means by which authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Consequently, even though the sums involved in the measure at issue are not held permanently by the public authorities, the fact that they remain constantly under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State aid.
In a case where the sums in question are transferred directly and exclusively between private companies, without any public body thereby acquiring, if only transiently, possession or control, State aid is not involved. That is the case where, in the context of financing the construction of a section of motorway by increasing the toll on other sections, the sums corresponding to the result of the increase of the toll are paid directly to the concessionary of the section of the motorway at issue, by other concessionaries, as private companies.
(see paras 103-105)