Keywords
Summary

Keywords

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1 . APPLICATION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO SUCH PERSONS - DECISION ADDRESSED TO A MEMBER STATE, PROHIBITING AID TO HORTICULTURAL PRODUCERS IN THE FORM OF A PREFERENTIAL TARIFF STRUCTURE FOR GAS - ACTION BROUGHT BY A PRODUCER BENEFITING THEREUNDER - INADMISSIBLE - ACTION BROUGHT BY A BODY REPRESENTING HORTICULTURAL PRODUCERS - PARTICIPATION IN THE TARIFF AGREEMENT AND IN THE PROCEEDINGS BEFORE THE COMMISSION - ADMISSIBLE

( EEC TREATY, ART . 93 ( 2 ) AND THE SECOND PARAGRAPH OF ART . 173 )

2 . AID GRANTED BY MEMBER STATES - DEFINITION - AID GRANTED THROUGH A STATE-CONTROLLED ORGANIZATION - PREFERENTIAL TARIFF FOR AN ENERGY SOURCE, WITHOUT ECONOMIC JUSTIFICATION, BENEFITING A CATEGORY OF UNDERTAKINGS

( EEC TREATY, ART . 92 ( 1 ) )

3 . AID GRANTED BY MEMBER STATES - DISTORTION OF COMPETITION - EFFECT ON TRADE BETWEEN MEMBER STATES

( EEC TREATY, ART . 92 ( 1 ) )

4 . AID GRANTED BY MEMBER STATES - FINDING BY THE COMMISSION THAT AN AID SCHEME IS INCOMPATIBLE WITH THE COMMON MARKET - NO INDICATION GIVEN AS TO THE AMOUNT BY WHICH AN ENERGY TARIFF FOUND TO CONSTITUTE A PROHIBITED AID SCHEME SHOULD BE INCREASED - NO INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS

( EEC TREATY, ART . 93 ( 2 ) )

Summary

1 . PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE INDIVIDUALLY CONCERNED BY THAT DECISION FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY 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 AND IF BY VIRTUE OF THOSE FACTORS IT DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

A HORTICULTURAL PRODUCER CANNOT BE CONSIDERED TO BE INDIVIDUALLY CONCERNED BY A DECISION OF THE COMMISSION ADDRESSED TO A MEMBER STATE AND PROHIBITING STATE AID IN THE FORM OF A PREFERENTIAL TARIFF FOR THE SUPPLY OF GAS TO HORTICULTURAL PRODUCERS . SUCH A DECISION IS OF CONCERN TO HIM ONLY IN HIS OBJECTIVE CAPACITY AS A GROWER ESTABLISHED IN THAT MEMBER STATE AND QUALIFYING FOR THE PREFERENTIAL TARIFF ON THE SAME FOOTING AS ANY OTHER PRODUCER IN THE SAME CIRCUMSTANCES .

ON THE OTHER HAND, THE RIGHT TO BRING AN ACTION FOR THE ANNULMENT OF SUCH A DECISION MUST BE ACCORDED TO A BODY ESTABLISHED UNDER PUBLIC LAW TO PROTECT THE COMMON INTERESTS OF AGRICULTURAL UNDERTAKINGS, TAKING INTO ACCOUNT THE PUBLIC INTEREST, WHEN THAT BODY HAS PARTICIPATED AS THE REPRESENTATIVE OF THE GROWERS' ORGANIZATIONS IN THE NEGOTIATIONS FOR A GAS-SUPPLY TARIFF, IS ONE OF THE PARTIES TO THE AGREEMENT LAYING DOWN THE CONTESTED TARIFF STRUCTURE, HAS TAKEN AN ACTIVE PART IN THE PROCEDURE UNDER ARTICLE 93 ( 2 ) OF THE TREATY AND HAS BEEN OBLIGED AS A RESULT OF THE DECISION TO CONCLUDE A NEW AGREEMENT .

2 . THE FIXING OF AN ENERGY TARIFF AT A LEVEL LOWER THAN THAT WHICH WOULD NORMALLY HAVE BEEN CHOSEN FOR THE BENEFIT OF A GIVEN CATEGORY OF UNDERTAKINGS, MAY BE REGARDED AS "AID" WHEN THAT TARIFF, BEING DETERMINED BY A BODY SUBJECT TO THE CONTROL AND THE INSTRUCTIONS OF THE PUBLIC AUTHORITIES, IS ATTRIBUTABLE TO ACTION BY THE MEMBER STATE CONCERNED, WHICH, UNLIKE AN ORDINARY ECONOMIC AGENT, USES ITS POWERS TO CONFER A PECUNIARY ADVANTAGE ON THE ENERGY CONSUMERS, FORGOING THE PROFIT WHICH IT COULD NORMALLY REALIZE .

THAT WOULD NOT BE TRUE OF A TARIFF WHICH, IN THE CONTEXT OF THE MARKET IN QUESTION, WAS OBJECTIVELY JUSTIFIED BY ECONOMIC REASONS SUCH AS THE NEED TO RESIST COMPETITION ON THE SAME MARKET FROM OTHER SOURCES OF ENERGY THE PRICE OF WHICH WAS COMPETITIVE . IN DETERMINING WHETHER SUCH COMPETITION IS A REAL PROSPECT, ACCOUNT SHOULD BE TAKEN NOT ONLY OF THE DIFFERENT PRICE LEVELS BUT ALSO OF THE COSTS INVOLVED IN CONVERSION TO A NEW SOURCE OF ENERGY, SUCH AS REPLACEMENT AND DEPRECIATION COSTS FOR HEATING EQUIPMENT .

3 . A REDUCTION OF AROUND 5.5% OF THE ENERGY PRICE GRANTED BY THE PUBLIC AUTHORITIES TO AN ECONOMIC SECTOR, WHERE ENERGY COSTS IN THAT SECTOR ACCOUNT FOR 25 TO 30% OF TOTAL OPERATING COSTS, CONSTITUTES AID LIKELY TO DISTORT COMPETITION AS REFERRED TO IN ARTICLE 92 OF THE TREATY .

TRADE BETWEEN MEMBER STATES IS AFFECTED WHEN THE STATE-AIDED PRODUCTION ACCOUNTS, IN THE CASE OF CERTAIN PRODUCTS, FOR 65% OF COMMUNITY OUTPUT, OF WHICH 91% IS EXPORTED, AND, IN THE CASE OF OTHER PRODUCTS, FOR 75% OF COMMUNITY OUTPUT, OF WHICH 68% IS EXPORTED .

4 . THE FACT THAT A COMMISSION DECISION WHICH PROHIBITS STATE AID IN THE FORM OF A PREFERENTIAL ENERGY TARIFF BENEFITING A GIVEN CATEGORY OF UNDERTAKINGS AND CLEARLY STATES THAT IT IS THE UNDULY LOW LEVEL OF THE TARIFF WHICH IS FOUND UNACCEPTABLE DOES NOT STIPULATE BY HOW MUCH THE TARIFF WOULD NEED TO BE INCREASED IN ORDER TO ELIMINATE ANY ELEMENT OF AID DOES NOT CONSTITUTE AN INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS .