61988J0180

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1 . Annulment of measures - Time-limits - Point from which time starts to run - Decision neither published nor notified to the applicant - Precise knowledge of the content of and reasons for the decision - Obligation to request the whole text of the decision within a reasonable time once its existence is known

( ECSC Treaty, Art . 33, third paragraph )

2 . Annulment of measures - Action brought by an association of undertakings against an individual ECSC decision of which it is not the addressee - Decision authorizing the payment of State aid to undertakings competing with the association' s members

( ECSC Treaty, Arts 33, second paragraph, and 48 )

1 . Failing publication or notification, it is for the party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period . Subject to that proviso, the period for bringing an action begins to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question in such a way as to enable it to exercise its right of action .

2 . An association within the meaning of Article 48 of the ECSC Treaty made up of undertakings in the steel industry of a Member State, whose purpose is to represent the common interests of its members, is concerned, within the meaning of the second paragraph of Article 33 of the ECSC Treaty, by Commission decisions authorizing the payment of State aid to competing undertakings established in another region of the Community .

In Case C-180/88,

Wirtschaftsvereinigung Eisen - und Stahlindustrie ( Iron and Steel Industry Association ), whose registered office is in Duesseldorf ( Federal Republic of Germany ), represented by J . Sedemund, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of A . May, 31 Grand-rue,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser N . Koch, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by J . E . Collins, of the Treasury Solicitor' s Department, and R . Plender, barrister, acting as Agents, with an address for service in Luxembourg at the British Embassy, 14, boulevard Roosevelt,

intervener,

APPLICATION for the partial annulment of the Commission' s decision of 26 May 1988 rejecting the applicant' s request regarding the grant of State aid to the British Steel Corporation,

THE COURT ( Sixth Chamber ),

composed of : G . F . Mancini, President of Chamber, T . F . O' Higgins, M . Díez de Velasco, C . N . Kakouris and P . J . G . Kapteyn, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of the parties at the hearing on 27 June 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 3 October 1990,

gives the following

Judgment

1 By application lodged at the Court Registry on 1 July 1988, the Wirtschaftsvereinigung Eisen - und Stahlindustrie ( hereinafter referred to as "WESI ") requested the Court, pursuant to the second paragraph of Article 33 of the ECSC Treaty, to :

( 1 ) annul the Commission Decision of 26 May 1988 ( SG(88 ) D/6179 ), which was notified to the applicant on 26 May 1988, in so far as the Commission refused to take the necessary measures to prevent distortion of competition arising from the fact that the British Steel Corporation had received more State aid than was necessary to restore its viability :

( 2 ) in the alternative, annul the implied decision of refusal which pursuant to the third paragraph of Article 35 of the ECSC Treaty is to be inferred from the Commission' s silence in regard to the applicant' s letter of 30 March 1988 requesting the Commission to take all the necessary measures to prevent distortion of competition arising from the fact that the British Steel Corporation had received more State aid than was necessary to restore its viability .

2 Pursuant to Commission Decision No 2320/81/ECSC of 7 August 1981 establishing Community rules for aids to the steel industry ( Official Journal 1981 L 228, p . 14 ), and in particular Article 8(3 ), the Commission adopted Decision 83/399/ECSC of 29 June 1983 concerning the aids that the United Kingdom Government proposes to grant to the steel industry ( Official Journal 1983 L 227, p . 36 ). By that decision it authorized the grant of aid to the British Steel Corporation ( hereinafter referred to as "BSC ") amounting to UKL 1 474 million .

3 Decision 83/399 of 29 June 1983 made the payment of aid subject to a number of conditions . The recipient undertaking was to carry out certain reductions in its production capacity ( Article 2 ) and fulfil its obligations in respect of the ECSC Treaty rules, in particular those governing production quotas ( Article 4 ). Furthermore, aid was to be paid only if the undertaking could return to viability by the end of 1985 . Pursuant to Article 4(1 ) of the decision it was the Commission' s task to ensure, on the basis of an application submitted by the United Kingdom Government specifying the amount, form and purpose of the aid and the undertaking concerned, that the conditions set out in Articles 2 and 3 , or a sufficient part thereof, were fulfilled and that the undertaking fulfilled its obligations in respect of the ECSC Treaty rules .

4 The aid to the BSC was paid in tranches which were released by three Commission decisions dated 10 February 1984 ( UKL 355 million ), 20 December 1984 ( UKL 466.6 million ) and 24 December 1985 ( UKL 535 million ). Those decisions were addressed to the United Kingdom Government and were not published in the Official Journal .

5 By letter of 30 March 1988 the applicant complained to the Commission pursuant to Article 35 of the ECSC Treaty and asked it to take all necessary measures to prevent distortions of competition arising from the fact that BSC had received more aid than was necessary to restore its viability . By letter of 26 May 1988 the Commission rejected that request .

6 On 20 May 1988 the applicant sent a further letter to the Commission informing it of the results of a study prepared at its request and drew the Commission' s attention to a large discrepancy between the amount of aid authorized and the amount of aid actually received by BSC during the period from 1 April 1980 to 31 March 1986 . Since the applicant' s letter of 20 May 1988 and the Commission' s letter of 26 May 1988 crossed in the post, the Commission replied to the applicant' s letter in a further letter of 25 July 1988 .

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 It should be noted, as a preliminary point relating to the subject-matter of the proceedings, that the principal conclusions seek the annulment of the Commission' s decision, contained in its letter of 26 May 1988, not to take any measures with regard to aid paid to BSC which, according to the applicant, was illegal on the grounds either that it was not essential for the undertaking or that it had never been authorized .

Admissibility

9 The Commission, supported by the United Kingdom, puts forward several objections of inadmissibility as regards both the submission based on the grant of aid which was authorized but is alleged to have been unnecessary and the submission concerning unauthorized aid .

10 The first matter which should be examined is the subject-matter of the request made to the Commission pursuant to Article 35 of the ECSC Treaty in the applicant' s letter of 30 March 1988 calling on the Commission to take action .

11 Amongst the formal requests made by the applicant to the Commission pursuant to Article 35 of the ECSC Treaty, recapitulated in the letter of 30 March 1988 mentioned above, is the request that the Commission should take all necessary measures to prevent distortions arising from the fact that BSC had received more aid than was necessary for it to achieve viability .

12 In support of its argument that that request was aimed at unauthorized aid as well as authorized aid, the applicant points out that in the annex to its letter of 30 March 1988 it referred to aid that had been "authorized or tolerated ".

13 It should be noted that that reference to aid that had been authorized or tolerated appears in a paragraph of the annex which deals solely with the question of the grant to BSC of authorized aid .

14 Furthermore, in its letter of 30 March 1988, including the annex, the applicant was seeking to demonstrate the illegality of the grant of the aid authorized by the Commission . The simple reference in the annex to aid that had been tolerated cannot be construed as meaning that the decision which the applicant considered the Commission should take was to relate not only to authorized aid but also to unauthorized aid .

15 It was in fact only in its second letter, dated 20 May 1988, that the applicant raised the issue of unauthorized aid . The Commission' s reply was dated 25 July 1988 . Since it was not challenged within the prescribed period that letter cannot form the subject-matter of an action .

16 It follows from the foregoing that the Commission cannot be considered to have adopted an express or implied decision of rejection with regard to the measures to be taken in respect of unauthorized aid .

17 In so far as they concern the grant of aid which was not authorized by the Commission the principal and subsidiary claims must be rejected as inadmissible for lack of subject-matter .

18 With regard to authorized aid, the Commission raises an objection of inadmissibility on the basis that the three decisions releasing aid are no longer open to challenge, since the period within which an action might be brought has long since expired .

19 In reply the applicant argues that the application is aimed solely at the elimination of distortions of competition, in relation to which the Commission was under an obligation to take action pursuant to the third indent of the second paragraph of Article 5 of the ECSC Treaty, since the decisions releasing aid were, in the applicant' s view, in breach of the provisions of Decisions Nos 2320/81 and 83/399 cited above .

20 It must be observed, however, that the applicant has not been able to indicate by what kind of decision, other than the withdrawal, if necessary partial, of the decisions releasing aid, the Commission might have rectified the effects of the grant of aid which in the applicant' s view was unlawful .

21 It must therefore be concluded that the purpose of the application is in fact to challenge the decisions releasing aid which were taken by the Commission on 10 February 1984, 20 December 1984 and 24 December 1985 .

22 It is clear from the Court' s case-law that, failing publication or notification, it is for the party which has knowledge of a decision concerning it to request the whole text thereof within a reasonable period and that the period for bringing an action can begin to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right of action ( judgment in Case 236/86 Dillinger Huettenwerke [1988] ECR 3761, paragraph 14 ). According to that same case, an undertaking is concerned within the meaning of the second paragraph of Article 33 of the ECSC Treaty by a decision of the Commission enabling benefits to be conferred on one or more other competitor undertakings ( paragraph 8 ).

23 It is common ground that since the applicant is an association within the meaning of Article 48 of the ECSC Treaty, made up of undertakings in the German steel industry, whose purpose is to represent the common interests of its members, it is concerned by the decisions authorizing the payment of State aid to competing undertakings established in another region of the Community .

24 Since the decisions in question were neither published nor notified to the applicant the Court must ascertain the point in time when the applicant may be deemed to have had cognizance thereof and could therefore request the full text .

25 It appears from the documents before the Court that the applicant must have had cognizance at least in the course of 1986 of the existence of the decisions releasing aid .

26 BSC' s accounts, in particular the accounts published on 8 July 1986, and the Fourteenth and Fifteenth Commission Reports on Competition Policy for 1984 and 1985 respectively revealed the existence of the decisions releasing aid . As the observations made in support of the application show, the accounts in question were in the applicant' s possession . As regards the reports on competition policy, these are published by the Office for Official Publications and are accessible to all concerned .

27 Furthermore, the Commission' s Report on the application of the Steel Aids Code 1984-85 ( document COM(86 ) 235 final ) was laid before the ECSC Consultative Committee, on which the applicant is represented, on 6 August 1985 .

28 It should also be noted that at no point during the exchange of letters between the applicant and the Commission which preceded the lodging of the application on 1 July 1988 was a request made to the Commission to transmit the text of the decisions releasing aid .

29 It follows that the reasonable period within which the applicant might have asked for the full text of the decisions releasing aid had long passed when the applicant lodged the present application .

30 In those circumstances there is no need to examine the other submissions in respect of inadmissibility put forward by the Commission, and it must be concluded that the action against the decision of 26 May 1988, which concerns the decisions releasing aid, is inadmissible because the period prescribed in Article 33 of the ECSC Treaty for the bringing of actions concerning the decisions releasing aid had expired when the present application was lodged .

31 Since the Commission adopted an express decision rejecting the request made to it pursuant to Article 35 of the ECSC Treaty in the applicant' s letter of 30 March 1988 giving formal notice of its complaint, there is no need for the Court to rule on the alternative claim seeking the annulment of the implied decision of refusal .

32 It follows from the foregoing considerations that the application must be rejected in its entirety as inadmissible .

Costs

33 Under Article 69(2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . Since the applicant has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT ( Sixth Chamber )

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Orders the applicant to pay the costs, including those incurred by the intervener .