Case T‑400/11

Altadis, SA

v

European Commission

(Actions for annulment — State aid — Aid scheme allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme to be incompatible with the common market and not ordering the recovery of the aid — Act entailing implementing measures — Lack of individual concern — No obligation to recover — Inadmissibility)

Summary — Order of the General Court (Eighth Chamber), 9 September 2013

1.      Judicial proceedings — No obligation on the General Court to commence the oral procedure before ruling on an objection of inadmissibility

(Rules of Procedure of the General Court, Art. 114(1) and (3))

2.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision prohibiting a sectoral aid scheme — Action by an undertaking having benefited from an individual aid granted under that scheme but not subject to a repayment obligation — Inadmissibility

(Art. 263, fourth para., TFEU)

3.      Actions for annulment — Natural or legal persons — Distinction between being individually affected and having an interest in bringing an action

(Art. 263, fourth para., TFEU)

4.      Actions for annulment — Natural or legal persons — Meaning of ‘regulatory act’ in Article 263, fourth paragraph, TFEU — Any act of general scope for legislative measures — Commission decision prohibiting a sectoral aid scheme — Act entailing implementing measures within the meaning of the said treaty provision — Not included

(Arts 263, fourth para., TFEU and 288, fourth para., TFEU)

5.      EU law — Principles — Right to effective judicial protection — Action for annulment of a decision on State Aid declared inadmissible by the General Court — Possibility of requesting the national court to make a reference for a preliminary ruling

(Arts 263 TFEU and 267 TFEU)

1.      See the text of the decision.

(see para. 19)

2.      See the text of the decision.

(see paras 23, 25, 26, 28, 31, 33, 34, 39, 41)

3.      See the text of the decision.

(see para. 38)

4.      An act, such as a Commission decision prohibiting a sectoral aid scheme, cannot be classified as a regulatory act not entailing implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.

Under the fourth paragraph of Article 288 TFEU, such a decision is binding in its entirety only on those to whom it is addressed. Consequently, the obligation to refuse to grant the advantage of the scheme at issue, to annul the tax advantages conferred and to recover any aid paid under that scheme are legal consequences of the contested decision that are binding on the Member State, to which that decision is addressed.

By contrast, the contested decision does not produce such legal effects vis-à-vis the beneficiaries of the scheme at issue, since the declaration of incompatibility does not in itself entail any prohibition or obligation for those beneficiaries. As the effect of the incompatibility is not necessarily the same for each of the beneficiaries of the scheme at issue, the consequences of the incompatibility must be individually itemised by a legal act emanating from the competent national authorities, such as a tax notice, which constitutes an implementing measure within the meaning of the fourth paragraph of Article 263 TFEU.

It is immaterial in this regard whether the Member State has no discretion in implementing the contested decision. The lack of discretion is a criterion which must, it is true, be examined in order to determine whether the applicant is directly concerned. However, the requirement of an act which does not entail implementing measures, laid down in the fourth paragraph of Article 263 TFEU, constitutes a different condition to the requirement that the act be of direct concern to the applicant.

(see paras 45-48)

5.      The European Union is based on the rule of law and the acts of its institutions are subject to review by the Court of their compatibility with the Treaty and with the general principles of law which include fundamental rights. Individuals are thus entitled to effective judicial protection of the rights they derive from the EU legal order.

An applicant is not in any way deprived of effective judicial protection where, even if the annulment action is declared inadmissible, there is nothing to prevent the applicant from challenging, before the national courts, the measures implementing the contested decision and, in particular, the tax notices refusing to grant it the benefit of the scheme at issue. The national courts would then be able incidentally to review the validity of the said decision and, if necessary, refer a question to the Court of Justice for a preliminary ruling on the assessment of validity under Article 267 TFEU.

(see para. 50)