Case T‑174/11

Modelo Continente Hipermercados, SA, sucursal en España

v

European Commission

(Action for annulment — State aid — Aid scheme permitting the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering recovery of the aid — Absence of individual concern — Inadmissibility)

Summary of the Order

1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision prohibiting a sectoral aid scheme — Action brought by an undertaking which received individual aid granted under the scheme without being subject to the recovery obligation — Inadmissibility

(Art. 263, fourth para., TFEU)

2.      Union 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

1.      An undertaking cannot, in principle, bring an action for annulment of a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis that undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner. However, where the decision in question is of concern to the applicant undertaking not only by virtue of its being an undertaking in the sector concerned and a potential beneficiary of the aid scheme, but also by virtue of its being an actual beneficiary of individual aid granted under that scheme, the recovery of which has been ordered by the Commission, that decision is of individual concern to the applicant and the applicant’s action against it is admissible. It cannot be inferred from that formulation, which places the recovery obligation on the same level as the applicant’s status as an actual beneficiary, that the requirement of such an obligation is of secondary importance, or indeed superfluous.

Since the applicant undertaking has not been subject to a recovery obligation, it cannot be considered to be individually concerned by such a decision.

(see paras 22-23, 27, 31)

2.      The European Union is based on the rule of law and the acts of its institutions are subject to review of their compatibility with the Treaty and with the general principles of law, which include fundamental rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the European Union’s legal order.

Where the General Court declares inadmissible an action for annulment brought by an undertaking against a Commission decision declaring an aid scheme incompatible with the common market although not ordering the recovery of the aid, there is nothing to prevent that undertaking from requesting the national court, in the course of any domestic proceedings, to make a reference for a preliminary ruling under Article 267 TFEU on the validity of the Commission’s decision in so far as it finds that the scheme at issue is incompatible. In such a case, the undertaking is not in the least deprived of any effective judicial protection.

(see para. 32)