Case C‑33/14 P

Mory SA, in liquidation and Others

v

European Commission

‛Appeal — State aid — Actions for annulment — Article 263 TFEU — Admissibility — Unlawful and incompatible aid — Obligation to recover — European Commission decision not to extend the recovery obligation to the successor of the aid beneficiary — Interest in bringing proceedings — Action for damages and for the recovery of aid before the national courts — Locus standi — Appellant not individually concerned’

Summary — Judgment of the Court (Third Chamber), 17 September 2015

1. Judicial proceedings — Request that the oral procedure be reopened — Application for leave to submit observations on the points of law raised by the Opinion of the Advocate General — Conditions for reopening

   (Art. 252, second para., TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 83)

2. Actions for annulment — Natural or legal persons — Admissibility criteria — Interest in bringing proceedings — Locus standi — Cumulative conditions — Inadmissibility of an action if one of those conditions is not met

   (Art. 263, fourth para., TFEU)

3. Appeal — Grounds — Review by the Court of the legal classification of the facts — Lawfulness

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

4. Actions for annulment — Interest in bringing proceedings — Basis of a possible action for compensation — Action for compensation brought before a national court after an action for annulment has been brought — Admissibility — Conditions

   (Art. 263, fourth para., TFEU)

5. Actions for annulment — Interest in bringing proceedings — Basis for actions before the national courts — Admissibility — Condition

   (Art. 263, fourth para., TFEU)

6. Actions for annulment — Natural or legal persons — Meaning of regulatory act in Article 263, fourth paragraph, TFEU — Any act of general scope except for legislative measures — Commission decision exempting the transferee of the assets of a beneficiary of the unlawful and incompatible aid from the obligation to recover — Not included

   (Art. 263, fourth para., TFEU)

7. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision adopted without initiating the formal investigation procedure related or complementary to a decision adopted following the formal investigation procedure — Competitor of the beneficiary of the aid — Lack of evidence of a competitive position on the market substantially affected by the State measure — Inadmissibility

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

1.  See the text of the decision.

   (see paras 24-28)

2.  As regards an the admissibility of an action for annulment, an interest in bringing proceedings and locus standi are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in order to be admissible to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

   First, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. An appellant’s interest in bringing proceedings must be vested and current and must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate. The interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings.

   Secondly, the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them.

   Therefore, an applicant may not claim that the mere fact that a natural or legal person is directly and individually concerned necessarily indicates his interest in bringing proceedings.

   (see paras 55-59, 62)

3.  Although the General Court has exclusive jurisdiction to find and appraise the facts and, in principle, to examine the evidence it accepts in support of those facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences. Consequently, the question whether, in the light of such facts and evidence, the annulment of the decision at issue by the EU Courts is capable of granting an appellant a benefit in the context of an action brought before the national courts, which may establish its interest in bringing proceedings before the EU Courts, is a question of law which comes within the Court’s review in the context of an appeal.

   (see para. 68)

4.  For an appellant, an action for annulment on the basis of the fourth paragraph of Article 263 TFEU may have an interest as a basis for a possible action for damages, in so far as the latter is not hypothetical. In that regard, where an appellant refers to the lodging of an action for damages before a national court in the application initiating proceedings by which it brought an action for annulment before the General Court, the bringing of the action for damages may be after the bringing of an action for annulment before the General Court.

   In that context, the interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained. Therefore, in a situation where, by the adoption of a decision, the Commission has ordered the recovery of unlawful and incompatible aid by an undertaking in receipt of such aid and which, by a later decision, contested in the context of an action for annulment, it exempted the undertaking taking over the assets of the beneficiary of the aid from that obligation to recover, that fact alone is capable of showing that the appellant has an interest in applying for annulment of the decision at issue, since the action for damages before the national courts, in so far as it seeks compensation for harm allegedly suffered by it as a result of the grant of the aid at issue, is based precisely on the premiss that the undertaking taking over the assets of the beneficiary of the aid must, as transferee, be regarded as the beneficiary of that aid. Since the annulment of the decision at issue is likely to have the result that the transferee should be regarded as the beneficiary of the aid at issue, the grant of which caused the damage alleged by the appellant, such an annulment would, in itself, be capable of increasing the likelihood that the action for damages brought before the national court would be successful in so far as that action is directed against the transferee and, therefore, that the appellant would benefit in the context of that action.

   In that regard, the appellant cannot be required to show that, under national law, the transferee could in fact be held responsible for the damage alleged solely on the basis of the takeover of the assets of the beneficiary of the of the unlawful and incompatible aid. It is not for the EU Courts, for the purpose of determining an interest in bringing proceedings before them, to assess the likelihood that an action brought before the national courts under national law is well founded and, therefore, to substitute itself for those courts in making such an assessment.

   (see paras 69, 70, 74-76, 79)

5.  The interest in bringing an action for annulment on the basis of the fourth paragraph of Article 263 TFEU could arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the appellant.

   Therefore, the annulment of a decision by which the Commission exempts the transferee of the assets of a beneficiary of unlawful and incompatible aid that the latter is required to recover is, in itself, capable of benefiting an appellant in the context of an action that it brought before a national court seeking an order that a Member State must recover the aid at issue, since that annulment would have as its effect that the transferee would no longer be necessarily subject to the obligation to repay deriving from the decision at issue, with the result that the annulment of the would be is liable to increase the likelihood of success of that action before the national court.

   In that context, even where certain considerations may affect the appellant’s interest in bringing proceedings before the national court, that fact is of no relevance whatsoever to the interest of that appellant in bringing proceedings before the EU Courts, since, by its outcome, the action for annulment brought before those courts is capable of affecting the outcome of the action seeking recovery of the aid at issue brought before the national court.

   (see paras 80, 81, 83)

6.  See the text of the decision.

   (see para. 92)

7.  In the context of an action for annulment relating to State aid, where the object of the contested decision consists in pointing out that State aid cannot be recovered from the transferee of part of the assets of the initial beneficiary of that aid, considered to be unlawful and incompatible, the latter is required to repay the aid in accordance with an earlier Commission decision, the contested decision must be regarded as a decision which is related and complementary to that earlier decision ordering recovery of aid from the initial beneficiary, in so far as it defines the scope thereof as regards the status of beneficiary of the aid at issue and, therefore, as regards that of the party obliged to repay that aid, following the occurrence of an event after the adoption of that decision, such as the acquisition by a third party of part of the assets of the initial beneficiary of that aid.

   Since the earlier decision, ordering the recovery of unlawful and incompatible aid from the initial beneficiary, was adopted by the Commission after the formal investigation procedure provided for in Article 108(2) TFEU, the appellant can be regarded as individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU, if it shows, inter alia, that its position on the market has been substantially affected by the grant of the aid at issue. By contrast, the mere fact that it might be regarded as interested within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible.

   Moreover, in that context, the fact that the appellant brought actions before the national courts seeking, first, an order that the national authorities must recover the aid at issue and, secondly, for compensation for the damage suffered as a result of the grant of that aid, also cannot, as such, suffice to distinguish it for the purposes of that provision, since anybody could potentially bring such an action.

   (see paras 103-106, 109)