ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
23 April 2007 (*)
(State aid – Decision not to raise objections – Action for annulment – Admissibility – Concept of party concerned – Trade union)
In Case T‑30/03,
Specialarbejderforbundet i Danmark (SID), established in Copenhagen (Denmark), represented by P. Bentley QC, A. Worsøe and F. Ragolle, lawyers,
applicant,
v
Commission of the European Communities, represented initially by H. van Vliet and subsequently by N. Khan, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented by J. Molde, acting as Agent,
and
Kingdom of Norway, represented by I. Høyland, acting as Agent,
interveners,
ACTION for annulment of Commission Decision C(2002) 4370 final of 13 November 2002 not to raise objections to the Danish fiscal measures applicable to seafarers on board vessels registered in the Danish international register,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
composed of J. Pirrung, President, A.W.H. Meij, N.J. Forwood, I. Pelikánová and S. Papasavvas, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 1 July 1988 the Kingdom of Denmark adopted Law No 408, which entered into force on 23 August 1988, establishing a Danish International Register of Ships (‘the DIS register’). That register was in addition to the ordinary Danish register of ships (‘the DAS register’). The DIS register is intended to combat the flight from Community flags to flags of convenience. The main advantage of the DIS register is that shipowners whose vessels are registered in it are allowed to employ third-country seafarers on those vessels and pay them wages on the basis of their national laws.
2 On the same date the Kingdom of Denmark adopted Laws Nos 361, 362, 363 and 364, which entered into force on 1 January 1989, introducing various fiscal measures relating to seafarers employed on board vessels registered in the DIS register (‘the fiscal measures’). In particular, they were exempted from income tax, whereas in the context of the DAS register they were subject to that tax.
3 On 28 August 1998 the Specialarbejderforbundet i Danmark (SID) (General Workers’ Union in Denmark, ‘the applicant’) lodged a complaint with the Commission against the Kingdom of Denmark relating to the fiscal measures, arguing that they were contrary to the Community guidelines on State aid to maritime transport (OJ 1997 C 205, p. 5) and hence to Article 87 EC.
4 On 13 November 2002 the Commission adopted Decision C(2002) 4730 final (‘the contested decision’), in which it decided not to raise any objections ‘to the fiscal measures that have been applied since 1 January 1989 to seafarers on board vessels registered in Denmark in either the DAS or the DIS register, considering that the arrangements constitute State aid but that they were or still are compatible with the common market in accordance with Article 87(3)(c) EC’ (contested decision, point 46, second indent).
Procedure and forms of order sought by the parties
5 By application lodged at the Registry of the Court of First Instance on 30 January 2003, the applicant brought an action for annulment of the contested decision.
6 By separate document lodged at the Registry of the Court on 17 March 2003, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance. The applicant submitted observations on the plea of inadmissibility on 16 May 2003.
7 By order of 18 June 2003, the President of the Second Chamber (Extended Composition) of the Court of First Instance, after hearing the parties, gave leave to the Kingdom of Denmark and the Kingdom of Norway to intervene in support of the Commission. The interveners waived submission of a statement limited to the question of admissibility.
8 Noting, first, that the present application is directed against a decision of the Commission, taken without initiating the formal review procedure provided for in Article 88(2) EC, which on the basis of Article 88(3) EC declared aid to be compatible with the common market (a ‘decision not to raise objections’), and, second, that on the one hand in its plea of inadmissibility the Commission did not mention the line of case-law following from the judgment of the Court of Justice in Case C‑198/91 Cook v Commission [1993] ECR I‑2487, paragraph 23, (‘the Cook case-law’) on the admissibility of applications brought against decisions of that kind and that on the other hand by its appeal in Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum the Commission was asking the Court of Justice to rule on the scope of that case-law, the President of the Second Chamber (Extended Composition) of the Court of First Instance, after hearing the parties, by order of 16 February 2005 stayed the proceedings in the present case pending the Court of Justice’s decision in Case C‑78/03 P.
9 On 13 December 2005 the Court of Justice gave judgment in Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737 (‘Commission v ARE’), in which it reviewed the Cook case-law. The procedure in the present case was consequently reopened.
10 By letter of 24 January 2006, the Court of First Instance requested the parties to submit their observations on the consequences to be drawn from Commission v ARE (paragraph 9 above) in the present case, with reference in particular to the admissibility of the present application.
11 In reply to the Court’s request, the Commission submitted observations on 13 February 2006 and the applicant on 15 February 2006. The Kingdom of Norway waived submission of observations. The Kingdom of Denmark did not reply within the period prescribed.
12 The Commission claims that the Court should:
– declare the application inadmissible;
– order the applicant to pay the costs.
13 The applicant contends that the Court should:
– dismiss the plea of inadmissibility;
– order the Commission to pay the costs relating to that plea.
Law
14 Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court of First Instance may rule on inadmissibility without hearing argument on the substance of the case. In accordance with Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise. The Court finds in this case that it has sufficient information from the documents in the file and that it is not necessary to open the oral procedure.
Arguments of the parties
15 The Commission submits that the application is inadmissible. First, in the context of an application under Article 230 EC, the applicant is not an interested party, because it is not in competition with the recipients of the aid (see the Opinion of Advocate General Tesauro in Cook v Commission, paragraph 8 above, at ECR I‑2502; the Opinion of Advocate General Jacobs in Commission v ARE, paragraph 9 above, at ECR I‑10741, point 109; and the order in Case T‑41/01 Pérez Escolar v Commission [2003] ECR II‑2157, paragraph 36). Second, it is also not individually concerned by the contested decision in that its position in the market is not substantially affected and its participation in the procedure is not enough to give it a legal interest in bringing proceedings (Commission v ARE).
16 The applicant argues that in the context of an action against a decision not to raise objections the question of admissibility relates to whether the applicant is a party concerned within the meaning of Article 88(2) EC, and refers to the definition of that concept in the case-law.
17 The fact that the applicant is not an undertaking does not suffice to exclude its being individually concerned by the contested decision. Its situation is comparable to that of a competing undertaking, in that it is an economic operator which negotiates the terms and conditions on which labour is provided to undertakings. It thus plays a part in transferring to shipping companies the benefit of the tax exemption envisaged by point 3.2 of the Community guidelines on State aid to maritime transport. It is also in a comparable position to that of a trade association, in that it expresses the common position of its members to government bodies. In any event, the applicant is a person whose interests are affected by the grant of aid. The aid affects the ability of its members to compete with non-Community seafarers in seeking employment with shipping companies, and it would be materially concerned, as an instrument of the policy defined by the Community guidelines, by an investigation into whether the guidelines were misused.
18 The applicant submits that its position as a negotiator is analogous to that of the applicants in Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219 and Case C‑313/90 CIRFS v Commission [1993] ECR I‑1125, and that its position differs from that of the applicant in Commission v ARE, paragraph 9 above. Like the Landbouwschap in Van der Kooy v Commission, the applicant negotiates with the shipping companies the conditions on which its members are employed, which have the effect of transferring to those companies the benefit of the tax advantages granted in accordance with the Community guidelines on State aid to maritime transport. As in CIRFS v Commission, the applicant informed the Commission that the Danish Government had granted advantages that were not consistent with the Community guidelines, and played an active part in the preliminary investigation. Moreover, since the judgment in CIRFS v Commission was given before the judgment in Cook v Commission, paragraph 8 above, the issue of admissibility could perfectly well be resolved by finding that the applicant is a trade association affected in its capacity as a negotiator.
19 In Commission v ARE, paragraph 9 above, the Court of Justice observed that ARE’s role went no further than the exercise of the procedural rights conceded to the parties by Article 88(2) EC. In the present case, the applicant could not have exercised any of the procedural rights under that provision. Moreover, ARE confined itself to expressing the views of its members, whereas the applicant plays a part in passing the benefit of the aid on to the shipping companies, in accordance with the Community guidelines on State aid to maritime transport.
20 The applicant claims that it is individually concerned. It recalls that, in accordance with the criterion in paragraph 70 of Commission v ARE, paragraph 9 above, the position in the market of the members of an association must be substantially affected by the aid scheme which is the subject of the contested decision. In the present case, the relevant market is that on which the owners of ships registered in the DIS register recruit seafarers. Those seafarers may be residents of the Community or of any non-member country. The situation of the applicant’s members is substantially affected by the fact that the benefit of the fiscal measures should have been granted only to Community seafarers, in accordance with the policy objectives of the Community guidelines on State aid to maritime transport. The applicant’s market position as such is also substantially affected as regards its ability to compete in the market for the supply of labour to shipping companies, and consequently its ability to recruit members.
Findings of the Court
Preliminary observations
21 In accordance with the fourth paragraph of Article 230 EC, a natural or legal person can institute proceedings against a decision addressed to another person only if the decision is of direct and individual concern to the former person.
22 According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (see, inter alia, Case 25/62 Plaumann v Commission [1963] ECR 95; Cook v Commission, paragraph 8 above, paragraph 20; and Commission v ARE, paragraph 9 above, paragraph 33).
23 In the case of a Commission decision on State aid, it must be borne in mind that, in the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 88(2) EC. It is only in connection with that examination, which is designed to enable the Commission to be fully informed of all the facts of the case, that the EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (Cook v Commission, paragraph 8 above, paragraph 22, and Commission v ARE, paragraph 9 above, paragraph 34).
24 Where, without initiating the formal review procedure under Article 88(2) EC, the Commission finds, by a decision taken on the basis of Article 88(3) EC, that aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance with them only if they are able to challenge that decision before the Community judicature (Cook v Commission, paragraph 8 above, paragraph 23; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 40; and Commission v ARE, paragraph 9 above, paragraph 35). For those reasons, the Community judicature declares admissible an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him under that provision (Cook v Commission, paragraphs 23 to 26; Case C‑225/91 Matra v Commission [1993] ECR I‑3203, paragraphs 17 to 20; and Commission v ARE, paragraph 9 above, paragraph 35).
25 The parties concerned within the meaning of Article 88(2) EC who are thus entitled under the fourth paragraph of Article 230 EC to institute proceedings for annulment are those persons, undertakings or associations whose interests might be affected by the grant of aid, in particular undertakings competing with the recipients of the aid and trade associations (Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16, and Commission v ARE, paragraph 9 above, paragraph 36).
26 On the other hand, if the applicant calls into question the merits of the decision appraising the aid as such, the mere fact that he may be regarded as a party concerned within the meaning of Article 88(2) EC cannot suffice to render the action admissible. He must then demonstrate that he has a particular status as defined in the Plaumann line of case-law, paragraph 22 above. That is so, in particular, where the applicant’s position in the market is substantially affected by the aid to which the decision at issue relates (see, to that effect, Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraphs 22 to 25, and Commission v ARE, paragraph 9 above, paragraph 37).
Admissibility
27 It is common ground that the contested decision was not addressed to the applicant. The Court must therefore examine whether the applicant is directly and individually concerned by the decision, that is, whether it can point to certain attributes which are peculiar to it or circumstances in which it is differentiated from all other persons (Plaumann, paragraph 22 above, at p. 107, and Commission v ARE, paragraph 9 above, paragraph 69).
28 Where an applicant seeks – as the applicant in the present case does by its first plea – to safeguard the procedural rights available to him under Article 88(2) EC in order to obtain the annulment of a decision not to raise objections, the Community judicature will declare his action admissible if he is a party concerned within the meaning of Article 88(2) EC (Commission v ARE, paragraph 9 above, paragraphs 35 and 36).
29 In the first place, it should be recalled that the provisions of Articles 87 EC and 88 EC are intended to avoid the actions of a Member State having the effect of distorting competition in the common market by giving preference to certain undertakings or productions.
30 In that context, it has been held that an action for annulment brought under Article 230 EC against a decision on State aid adopted without initiating the formal review procedure is inadmissible if the applicant’s competitive position in the market is not affected by the grant of the aid (Case T‑188/95 Waterleiding Maatschappij v Commission [1998] ECR II‑3713, paragraph 62; see also, to that effect, Case T‑69/96 Hamburger Hafen- und Lagerhaus and Others v Commission [2001] ECR II‑1037, paragraph 41). Similarly, it has been held that an applicant who is not an undertaking whose competitive position has allegedly been affected by the State measures said to be aid cannot establish a personal interest in relying on the alleged anti-competitive effects of those measures in an action against the Commission’s decision not to initiate the procedure provided for in Article 88(2) EC (see, to that effect, Case T‑178/94 ATM v Commission [1997] ECR II‑2529, paragraph 63, and the order in Pérez Escolar v Commission, paragraph 15 above, paragraph 46).
31 Neither the applicant as a seafarers’ trade union nor its members are competitors of the recipients of the aid at issue as identified in the contested decision, namely the owners of ships registered in the DIS register.
32 Thus, as regards the applicant itself, it cannot claim that its own competitive position is affected by the aid at issue. First, it has been held that an association of the employees of the undertaking which allegedly benefited from State aid was in no way in competition with that undertaking (ATM v Commission, paragraph 30 above, paragraph 63). Second, in so far as the applicant relies on its own competitive position in relation to other seafarers’ trade unions in the negotiation of collective agreements in the sector in question, it suffices to point out that agreements concluded in the context of collective negotiations do not fall within the scope of competition law (see, for the non-application of Articles 3(g) EC and 81 EC to collective agreements, Case C‑67/96 Albany [1999] ECR I‑5751, paragraphs 52 to 60).
33 Similarly, as regards the applicant’s members, there is nothing in the case-file to indicate that those seafarers fall outside the definition of a worker within the meaning of Article 39 EC, namely a person who for a certain period of time performs services for and under the direction of another person in return for which he receives remuneration. As workers, they are not therefore themselves undertakings (Case C‑22/98 Becu and Others [1999] ECR I‑5665, paragraph 26).
34 In the second place, the applicant, as an organisation representing workers, is by definition established to promote the collective interests of its members.
35 In this respect, it has been held that it was not excluded that bodies representing the employees of the undertaking in receipt of aid might, as parties concerned within the meaning of Article 88(2) EC, submit comments to the Commission on considerations of a social nature which could be taken into account by the Commission if appropriate (order in Case T‑189/97 Comité d’entreprise de la Société française de production and Others v Commission [1998] ECR II‑335, paragraph 41).
36 In the present case, however, it appears that the social aspects arising from the DIS register derive primarily from the establishment of the register by Law No 408 rather than from the accompanying fiscal measures introduced by Laws Nos 361, 362, 363 and 364. First, the Commission took the view that the establishment of the DIS register did not constitute State aid, and it limited its examination of the compatibility with the common market of the State measures at issue to the fiscal measures alone (contested decision, points 14 and 15). Second, in its observations on the plea of inadmissibility (point 8), the applicant expressly stated that its case was based on an infringement of Article 87(3)(c) EC and that it had never claimed that State aid arose from the fact that non-Community seafarers might be subject to different conditions of employment from Community seafarers. It follows that in the present case the social aspects of the DIS register are only indirectly linked to the subject-matter of the contested decision and thus, as the applicant acknowledges, to the present proceedings. The applicant cannot therefore rely on those social aspects to establish that it is individually concerned.
37 Moreover, the applicant cannot be regarded as individually concerned merely because the aid in question is passed on to the recipients by means of a reduction in the wage claims of the seafarers benefiting from the income tax exemption established by the fiscal measures. The contested decision is based on the advantages received by the recipients of the aid, not on the method of transmission of the aid.
38 In the third place, the applicant has not shown that its own interests as a negotiator were liable to be directly affected by the aid in question.
39 In this respect, it should be recalled that in Van der Kooy and Others v Commission and CIRFS v Commission, paragraph 18 above, the applicants were able to rely on an altogether special, indeed exceptional, position, as having negotiated and signed the agreement establishing the tariff that constituted aid and having participated closely in the procedure before the Commission (Van der Kooy and Others v Commission, paragraphs 21 to 24, and Case C‑106/98 P Comité d’entreprise de la Société française de production and Others v Commission [2000] ECR I‑3659, paragraph 43) or as having been the Commission’s interlocutor with regard to the definition of the discipline concerning aid in the sector in question (CIRFS v Commission, paragraphs 29 and 30, and Case C-106/98 P Comité d’entreprise de la Société française de production and Others v Commission, paragraph 44).
40 In the present case, the mere fact that the applicant made a complaint to the Commission against the aid at issue does not mean that it is distinguished individually. Furthermore, even though the applicant may have been one of the negotiators of the collective agreements for seafarers on board ships registered in one of the Danish registers and as such have played a part in the machinery for passing the aid on to shipowners, the applicant has not shown that it negotiated the drafting of the Community guidelines on State aid to maritime transport, relied on in the present case, with the Commission or the adoption of the fiscal measures with the Commission or the Danish Government.
41 It follows from all the foregoing that neither the applicant nor its members are individually concerned by the contested decision.
42 The application is therefore inadmissible for want of a legal interest in bringing proceedings as defined in Article 230 EC.
Costs
43 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs, as applied for in the latter’s pleadings.
44 Under Article 87(4) of the Rules of Procedure, Member States and institutions which intervene in a case are to bear their own costs. The Kingdom of Denmark and the Kingdom of Norway must therefore bear their own costs. The other parties must bear their own costs in connection with intervention.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicant is ordered to bear its own costs and to pay those of the Commission.
3. All the parties are ordered to bear their own costs relating to the interventions.
Luxembourg, 23 April 2007