Keywords
Summary

Keywords

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230 EC)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230 EC)

3. State aid – Existing aid

(Arts 87 EC and 88 EC; Council Regulation No 659/1999, Art. 1(b)(v))

4. State aid – Examination by the Commission

(Art. 87 EC)

5. State aid – Meaning

(Art. 87(1) EC)

6. State aid – Meaning

(Art. 87(1) EC)

7. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

8. Community law – Principles – Protection of legitimate expectations – Conditions

9. State aid – Commission Decision repealing a tax regime made available by way of authorisation

Summary

1. Under Article 230 EC, a natural or legal person may institute proceedings against a decision addressed to another person only if the decision is of direct and individual concern to it.

As regards the second of those conditions, the fact that a disputed provision is, by its nature and scope, a provision of general application inasmuch as it applies to the traders concerned in general, does not of itself prevent it being of individual concern to some.

Natural or legal persons may claim that a contested provision is of individual concern to them only if it 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.

In that regard, where a contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of traders. That applies to undertakings in respect of which a Commission decision relating to State aid prevents the benefit of national derogating tax measures continuing until the end of the period laid down under national legislation or until the renewal of that benefit, which they have applied for and to which they would have been entitled.

(see paras 55, 58-64)

2. An association which is responsible for protecting the collective interests of undertakings is, as a rule, entitled to bring an action for annulment against a final decision of the Commission in matters of State aid only if those undertakings or some of those undertakings themselves have locus standi or if the association can prove an interest of its own.

(see para. 56)

3. Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC], which codifies the rules relating to the exercise by the Commission of the powers conferred on it by Article 88 EC, does not define the concept of ‘evolution of the common market’ referred to in Article 1(b)(v), which states that a measure which did not constitute aid when it was put into effect is none the less to be treated as existing aid in so far as it ‘subsequently became an aid due to the evolution of the common market’. That concept, which may be understood as a change in the economic and legal framework of the sector concerned by the measure in question, does not apply in a situation where the Commission alters its appraisal on the basis only of a more rigorous application of the Treaty rules on State aid.

However, the regulation constitutes a measure of secondary legislation adopted for the purposes of the application of Article 87 EC and Article 88 EC, which cannot restrict the scope of those articles, particularly as the Commission derives its powers directly from them. Article 88(1) EC entrusts the Commission with the task of keeping under constant review all systems of aid existing in the Member States and of proposing to them any appropriate measures required by the progressive development or by the functioning of the common market. Should effect not be given to those proposals, Article 88(2) entitles the Commission to require the Member State concerned to alter or to abolish the aid within a period of time to be determined.

It follows that, in deciding to review the tax regime applicable to certain undertakings in a Member State which, while it had been the subject of previous decisions finding that there was no aid, was declared harmful to the common market by a Council working group, and by applying to that regime the procedure for monitoring existing aid, which led the Commission to conclude that that regime should henceforth constitute State aid incompatible with the common market, the Commission carried out the duties entrusted to it under Article 88 EC. The legal basis of such a decision is therefore Articles 87 EC and 88 EC.

As the principle of legality was complied with, such a decision constitutes a measure which is certain and the application of which was foreseeable by those subject to it. Accordingly, the decision does not infringe the principle of legal certainty.

(see paras 70-76)

4. In the case of an aid programme, the Commission may confine its examination to the characteristics of the programme in question in order to determine whether it gives an appreciable advantage to the recipients in relation to their competitors. It is not required to examine each particular case in which the regime applies.

(see para. 82)

5. The concept of aid may cover not only positive benefits, such as subsidies, loans or the taking of shares in undertakings, but also action which, in various forms, mitigates the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect.

A measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom it applies in a more favourable financial situation than other taxpayers constitutes State aid.

(see paras 86-87)

6. Article 87(1) EC requires that it be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the system in question, are in a comparable legal and factual situation. If so, the measure concerned fulfils the condition of selectivity which is a defining characteristic of the concept of State aid as set out by that provision.

(see para. 119)

7. While the obligation to state reasons for a Community measure laid down under Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review, the Commission is not required in a decision finding an aid regime to be incompatible with the common market to state the reasons why it made a different assessment of the same aid regime in its previous decisions. The concept of State aid must be applied to an objective situation, which falls to be appraised on the date on which the Commission takes its decision.

(see para. 137)

8. The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where a Community authority has caused him to entertain expectations which are justified. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration. Similarly, if a prudent and alert economic operator could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted.

Furthermore, even if the Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change. However, in the absence of an interest of that kind, the absence of transitional measures intended to protect the expectations which traders might legitimately have derived from the retention of Community rules may be considered as an infringement of a superior rule of law.

(see paras 147-149)

9. There is an infringement of both the principle of legitimate expectations and that of equal treatment where the Commission adopts a decision which, reversing its previous findings to contrary effect, repeals a particular tax regime on the ground that it involves State aid incompatible with the common market, without laying down transitional measures in favour of traders requiring an authorisation, renewable without difficulty, in order to benefit from that regime which expires at the same time as or shortly after the date of the decision’s notification, while not precluding authorisations in place on that date continuing to have effect for several years, where those traders, who are not in a position to adapt to the change to the regime in question in a short timescale, were on any basis entitled to expect that a Commission decision reversing its previous approach would give them the time necessary to address that change in approach and where no overriding public interest precludes the necessary time being afforded to them.

(see paras 155-167, 172-174)