Case T‑601/11

Dansk Automat Brancheforening

v

European Commission

(Actions for annulment — State aid — Online gaming — Introduction in Denmark of lower taxes for online gaming than for casinos and amusement arcades — Decision declaring aid compatible with the internal market — Aid to facilitate the development of certain activities — Lack of individual concern — Regulatory act entailing implementing measures — Inadmissibility)

Summary — Judgment of the General Court (Fifth Chamber), 26 September 2014

1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision terminating an aid proceeding — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions

(Arts 108(2) TFEU and 263, fourth para., TFEU)

2.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Action by an association entrusted with defending the collective interests of undertakings — Admissibility — Conditions

(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)

3.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding an aid compatible with the internal market — Action by an association acting in the collective interests of its members — Whether members of the association individually affected — Need for the association to demonstrate that its members substantially affected — None — Inadmissibility

(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)

4.      Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures or not — Concept — Court remedies available against such measures

(Arts 263, fourth para., TFEU, 267 TFEU and 277 TFEU)

5.      Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Commission decision fining an aid compatible with the internal market — Inadmissibility of the action brought before the EU judicature — Right to effective judicial protection — Obligation to use internal remedies to challenge those measures

(Arts 263(4) TFEU and 267 TFEU)

1.      See the text of the decision.

(see paras 31-33, 41, 42)

2.      See the text of the decision.

(see para. 37)

3.      In the case of an action by an association acting in the collective interest of its members against a Commission decision declaring an aid compatible with the common market, it is not for the EU courts, when considering whether the application is admissible, to make a definitive finding on the competitive relationship between the applicant’s members and the undertakings in receipt of the aid in question. It is for the applicant alone to adduce pertinent reasons to show that the aid in question may adversely affect the legitimate interests of one or more of its members by substantially affecting their position on the market in question.

Where an applicant has not demonstrated that the consequences of the aid measure in question affects not only its members in their objective capacity as operators of offline games in the same way as any other economic operator in the same situation, nor demonstrated the extent of the potential impact of the aid measure in question on the economic situation of its members, it has not established that the aid measure in question was liable to have a substantial adverse effect on the position of one or more of its members on the market concerned. The members of the association and, consequently, the association itself, are therefore not individually concerned by the contested decision.

(see paras 40, 52)

4.      See the text of the decision.

(see paras 54-57)

5.      A decision whereby the Commission declares a State aid compatible with the internal market, which does not specify the specific, actual consequences of that declaration for each of the taxpayers and from which it is apparent that the entry into force of the law on gaming duties has been postponed by the national authorities until the Commission had given its final decision in accordance with Article 108(3) TFEU, entails implementing measures.

The specific, actual consequences of such a Commission decision for taxpayers materialise as national acts, namely the law on gaming duties, whereby the aid scheme in question was introduced by the Member State, and the acts implementing that law fixing the amounts of tax owing by the taxpayers, which, as such, are themselves implementing measures entailed by the contested decision within the meaning of the fourth paragraph in fine of Article 263 TFEU. Those acts were to come into effect after the adoption of the contested decision so that the aid scheme in question would produce effects in respect of taxpayers. Since those acts could be challenged before the national courts, taxpayers could have access to a court without being required to infringe the law. In proceedings before the national court they could have pleaded the invalidity of the contested decision and caused the court to request a preliminary ruling from the Court of Justice pursuant to Article 267 TFEU. Consequently, an action against such a decision does not fulfil the admissibility requirements laid down in the fourth paragraph of Article 267 TFEU.

(see paras 58-60)