2010EurStAidLQ303

Citation: 2010 Eur. St. Aid L.Q. 303 2010

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L~t\L O1OStanding in State Aid Cases: What's the State of Play? 1303

Standing in State Aid Cases:What's the State of Play?

Ktillike Jw jmae*

1. Introduction

Locus standi for third parties to bring an action forannulment against a Commission State aid decisionis a particularly contentious issue, which has givenrise to abundant case lawx Yet again, in 2008 2009,

the Court of justice and the General Court of theEuropean Union (formerly knowxn as the Court ofjustice of the European Communities and the Courtof First Instance of the European Communities,hereinaftei respectively refeirred to as the 'CJ andthe "C") deliv ered a numbei of judgments in casesin which they had been iequested to adjudicate onthe extent and the limits of the rights of access tojustice enjoyed by third parties in State aid proce-dures. M~ore precisely, EU courts weie prompted toanswer one fundarnental question: should thurdparties be offeied better access to the EU judicaturewhen seeking to challenge the legality of the out-come of the pieliminary assessment of an aid meas-ure canried out by the Commission? This questionwas iaised in two distinct contexts.

In a first set of cases, EU courts w~ere called uponto review their case law,% concerning the standing ofcompetitors of beneficiaries of aid lodging actionsagainst decisions adopted by the Commission pur-

judge, General Court of the European Union. The viewsexpressed in this article aie strictly personal. This article is basedon an oral presentation given at the 7th [Experts Forum on NewDevelopmrents in European State Aid Law 2009, 14 May 2009,Brussels This article is updated as at 20 March 2Q0 10.l spcialthanks to Pascale Hecker and Cyiil Saiiazin 101 their invaluablehelp. AS uSl uall errors remain entirely my own.

I To avoid any confus~ion w~ith iegard to the numbeiing 01 TreatyArticles, the new TFU numbering is used throughout this article.

2Council Regulation (EC) No 6-59/1999 of 22 March 1999 layingdowxn detailed rules toi the application 01 Article [H 08 TFEL1'OJ 1999 LF 83 F. 1.

3

4

See Artie Ie 25of RegulIati on 659/1999.

Case 2562, Plaumnn v. Cormssion [1963] ECR 9 5.

See e g. case C-276/03 1P Scott v Commissior [2005]FCR 1-8437, paragraph 33 Opinion of Advxocate General Bot in

Cas C-52 1/06 P. Athrin ki Technki v. Commrission [2008]FCR 1-5829, paragraph 99.

suant to Article 108(3) '1FEU 1 (formerly Article88(3 EC). Article 108(3) Ti-EU envisages the pre-liminary examination of the aid at issue (here-inafter referred to as the "preliminary investigationprocedure"). T1he preliminary investigation proce-dure may be initiated pursuant to the receipt by theCommission of a notification from a Member Stateor the receipt of a complaint. It may be concludedby one of three types of decisions, as set out inRegulation 659/1999. 2First, pursuant to Article 4(2)

of Regulation 659/1999, the Commission maydecide that a notified measure does not constituteaid. Second, by v irtue of Aiticle 4(N of Regulation659/ 1999, the Commission may decide that a noti-fied measure, which constitutes aid within themeaning of Article 107(1) TFEU (formerly Aiticle87(l) EC) is compatible with the common market.Third, under Article 4(4) of Regulation 659/1999,where it finds that doubts are iaised as to the com-patibility with the common market of a notifiedmeasure, the Commission may decide to initiate thefoirmal inv estigation piroceduire pirovided for inArticle 108(2) '1FEU (formerly Article 88(2) EC).

In the past, EU courts did not easily uphold theadmissibility of cases brought by competitors ofbeneficiaries of aid against those three types ofdecisions. As those decisions are addressed toMember States, 3 applicants had to demonstrate, inapplication of Article 263(4) '1FEU (formerly Article230(4) EC), that the decision they challenged w~as ofdirect and individual concern to them. The condi-tions which had to be met for individual concern tobe demonstrated w~ere defined in Plaurnann. 'Yet,because of the specificity of the State aid procedureas set out in Article 108(2) and (3) TFEU, which is

one that takes place primar ily between theCommission and Member States and leav es onlylimited ioom for the intervention of thurd parties,those third parties had difficulties pirov~ing that theyweie individually concerned by the State aid deci-sion they were seeking to annul. Difficulties alsoresulted from the fact that the preliminary stage ofthe procedure for rev iewing aid under Aiticle

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304 1Standing in State Aid Cases: What's the State of Play? LtL~~1

108(3) TFEU is intended merely to allow the Cornmission to foim a pritno focic opinion on the aid inquestion 6 and does not allow toi the intervention ofparties othei than the M~ember State conceined.' Inthis iespect, it should be pointed out that there is nofoim of publication that informs third pairties of aidprojects which have been notified,8 and a simplesummary of the decision closing the preliminaryexamination stage of the procedure is published inthe Official journal of the EU. This means that aperson w~ishing to bring an action for annulment ofthe decision may not have sufficient information toestablish, in its application, that it is individuallyconcerned in accordance wxith the criteria laid downin Plaumann. For this reason, EU courts progres-sively relaxed the conditions to be met for a com-petitor of an aid beneficiary to be considered to beindividually concerned by a decision adopted bythe Commission pursuant to Article 1o8(3) TFEU.'

Howev er, in the cases which will be ireviewed inthe first part of this article, the EU judicatuie firm-ly refused to fuithei relax the conditions to be metfoi a competitoi of an aid beneficiary to demon-strate individual concern. In those cases, the EUjudicature confined itself to confirming the existingcase law clarifying it and, to a ceitain extent, inter-preting it in a mannei that bettei serves the inter-ests of competitoirs.

In contrast, in the second set of cases, which willbe rev iewed here, the case law was iradically ov er-turned by the CJ. The EU judicature w~as calledupon to reassess its case lawx concerning the stand-ing of complainants bringing a case against a deci-sion not to take any further action on their com-plaint. Previously, challenges brought by com-plainants against such decisions were considered tobe inadmissible. 1In this respect, it should be re-called that while third parties may lodge a com-plaint with the Commission, informing it of allegedunlawxful aid or of alleged misuse of aid, pursuantto Article 20(2) of Regulation 659/1999, the Coinmission is merely under an obligation either toinfoirm the complainant that theire aire insufficientgrounds foi taking a v iew on the case, or to send acopy of the decision it has taken on the case. Theletter infoirming the complainant that the casewould not be fuitherinvxestigated was not con-sideied to be a challengeable act within themeaning of Article 263 TFEU, which implied thatactions lodged against such letters were dis~missedas inadmissible.

in the second part of this contiibution, two recentjudgments concerning the standing of com-plainants to lodge a case against a decision not totake any further action on theii complaint will berexiewed. While one maiks a definitixe departuiefrom the past case law by extending the notion ofchallengeable act, the other remains in line withthat case law.

IL. Standing of Competitors:Clarification but no Revolution

1. Background: the evolutionof the standing test

An analysis of recent case law,% concerning standingof competitors of beneficiaries of aid to bring a casebefoie the EU judicatuie cannot be cairied outwithout fiirst briefly recalling the formei case law.

a. Fromn Cufaz to Coovk and M'atra: thedevelopment of a new standing test

As mentioned in the introduction, competitors ofbeneficiaries of aid wishing to bring an actionagainst a decision taken pursuant to Aiticle 1o8(3)TFEU have to demonstr ate that they are individual-ly conceined by the decision. In Plaumann, the CJheld that persons, other than those to w~horn a deci-sion is addressed, may claim to be individually con-cerned for the purposes of the fourth paragraph ofArticle 263 T1FEU only if that decision affects themby reason of certain attributes peculiar to them orby reason of circumstances w~hich differentiatethem from all other persons, and thus distinguishesthem individually, as in the case of the personsaddressed.

6 See e g. case C-31 9/07 P 3F v.Cormssion, not yet reported,paragraphi 30.

7Opinion @1 Aclocate General Jacobs in case C-276/03 P, ScottvCommission 1200-5] ECR 1-8437 paragraph 72.

8 See Joined Case 91/83 and 127/83, Heinekenl BrnUvveiijerl[1984] [CR 3435, paragraph 15.

9 See, eg., Opinion @1 Aclocate General Tesauro in Case C-198/9] Cook vCommission 1993] ECR 1-2487 paragraph 4].

10 This will be further elaborated in section 11.11 of tis article.

I See, in particular, Case C-367/95 P Comnmis.sion v Sytrax aI andBrink's Fmnce [1998] [CR 1-1719.

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In view of the specificity of the State aid piocedureand because an indeteiminate number of othercompetitors may inv~oke a similar advxeirse effect,Plautnann placed a very heavy buiden of pioof onundertakings bringing an action against a decisionauthoising the granting of aid to competitors.Accordingly, in Cofaz, 12 a case which concerned anaction against a decision adopted pursuant toArticle 108(2) T1FEU, i e. at the end of the formalinvestigation phase, the CJ alleviated that burden ofproof From Cofaz onw~ards, proof that the appli-cant's competitive position is significantly affectedby the aid measure has been sufficient to confer onthat undertaking locus standi to bring an actionagainst the decision authorising that measure,regardless of the fact that an indeterminate numberof other competitors may invoke a similar adverseeffect. It is to be noted that, in Cofuz, the Cl placedsome ieliance on the fact that the competitors ofthe beneficiaries of aid actyively paiticipated in thefor mal investigation. Nonetheless, even aftei Cofazit remained difficult for competitors wishing tochallenge an Article 108(3) 1 FLU Commission deci-sion to establish standing, in paiticulai becausethey had no right to paiticipate in the preliminaryinvestigation procedure.

As a result, in Cook'1 and Matra, 1 4 the CJ devel-oped a separate -less stringent -test for standingfor paities challenging a decision adopted underArticle 1o8(3) TFEU, to be applied in specific cir-

cumstances. In those cases, the CJ emphasised thedifferences betwxeen the formal and the preliminaryinvestigation procedures, envisaged respectively atArticles 108(2) and 108(3) '1FEU. It first recalledthat it is only in connection with the formal inves-tigation procedure that third parties -referred to, inArticle 108(2) Ti-EU, as "parties concerned" -aregiven an opportunity to participate in the proce-dure and benefit, in this respect, from proceduralguarantees, in the form of an obligation on the part

1 ? Cs 169/84, Cofiz ar Others vCommrission 19861 [CR 39].

3 Case C'1% 991, Cool. v Commission [19931 FCR 1-47

14 Case C-22591 M4atra v Commssioni [19931 FCR 1-303

15, Matra, fn. 14, paragraph 16, Cook- in. 14, paragraph 22.

16 M~atra, fn. 14, paragraph 17 Cook fn. 14. paragraph23

17 Case 323/8 Inteimills v Commission [19841 FCR 3809,paragraph 16.

18 M atra, fn. 14, paragraph 18;, Cook in. 14. paragraph 24.

19 Opinion of Advocate General TesaUro in Cook- in. 9. paa

graph 41.

of the Commission to give them notice to submittheir comments. 15It then stated that the only waythat the beneficiaries of those procedural guaran-tees may ens~ure compliance therewith is if they aieable to challenge the Article 1o8(3) TFEU decisionnot to initiate the formal investigation procedurebefore the EU judicature. l6 On this basis, the CJconcluded, in both cases, that the actions w~ereadmissible because they had been brought by per-sons w~horn it considered to be parties concernedfor the purposes of Article 108(2) Ti-EU. It alsomade clear that parties concerned had been definedby the CJ in Interrnils'1 as the persons, unciertakings or associations w~hose interests might be affect-ed by the granting of the aid, in particular compet-ing undertakings and trade associations. 18

T1o summarise, after Cook and la tra, to put it inthe same terms, as Advocate General 'lesauro,' 9 inorder to gain locus, standi to challenge decisions notto raise objections under Article 108(3) TFEU, it isufficient that the applicant, who seeks to have theprocedural rights prov~ided for in Article 108(2)

TFEU safeguarded, establishes that it was compet-ing genuinely and not just mar ginally with theundertaking in receipt of the aid. In contrast, onemay infer from Cook and Akla tra that, if the appli-cant contests the merits of the Article 108(3) TFEUdecision, the Cofaz test remains applicable.

The Cook and Akla tra cases, which were intendedto giv e fuller pirotection to competitors in case theCommission decided not to initiate the Article108(2) T1FEU procedure, constituted an appreciableextension of the rights of access of competitors ofbeneficiaries of aid to EU courts, in view of the factthat, as explained above, on the one hand, they lackany procedural status under Article 108(3) T1FEUand, on the other hand, they have insufficient infor-mation to establish individual concern within themeaning of Plaurnann and Cofuz. Howxever, w~hileconstituting appreciable progress from the point ofviewx of competitors seeking access to EU courts,Cook and Alatra gave rise to difficulties of interpre-tation and application and led to a certain incoher-ence of the subsequent case law.

b. Difficulties identified pursuant to Cookand Matra

Three main difficulties of interpretation and appli-cation of Cook and Aklatra were identified.

First, after the delixvery of those judgments, therewas a degree of uncertainty as to how the new

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306 1Standing in State Aid Cases: VWhat's the State of Play2?~X ~~1

standing test should be inteipieted.0 In paiticulai,in some judgments, the GC inteipieted it as imply-ing that the competitor of the recipient ot the aidmust demonstrate that its competitive position inthe maiket is affected by tihe gianting of the aid. Inpractice, tihe GC applied a test that wvas veiy close tothe Cofaz test and considered that the fact that anapplicant's business might be affected by the aid atissue is not sufficient for the test to be met. 1 Forexample, in Hanmburger Hajen 2 a case lodged byindirect competitors of the beneficiaries of an aid,the GC dismissed the application as inadmissible,holding that the applicant had neither adduced anyevidence of a decrease in turnover nor a direct linkbetwxeen the granting of the aid and a decrease inturnover. 23

Second, there was much hesitation as to howx thenew' standing test should be applied, which led to agreat degree of inconsistency ini the case law. 2 4

While, in Cook and Akla tra, the CJ held, ini substance,that inteirested parties intending to benefit firom theprocedural guaiantees prov ided foi in Article106(2) 1 FEU may secure compliance therewithonly if they are able to challenge the Aiticle 108(3)

TFEU EC decision, it did not give any precision asto how and to what extent the intention of interest-ed parties to have their proceduial rights safe-guaided should be controlled.

On the one hand, the CJ did not state whetherthis intention should be explicitly put by the appli-cant in its pleadings or could be presumed.Accordingly, in certain cases in w~hich applicantshad not explicitly claimed that they were seeking tohave their procedural rights safeguarded, both theCf and the GC reinterpreted the pleas of the appli-cant as seeking the annulment of the Commission'srefusal to initiate the formal investigation proce-dure. 25

On the other hand, the Cl did not make it clearw~hether, w~hen the admissibility of an action isupheld on the basis of the alleviated standing testset out in Cook and Motro, its powxer of review islimited to the pleas alleging an infringement of pro-ceduial rights, meaning that all othei pleas shouldbe dismissed as inadmissible. In othei words, thequestion is whether, when the Cofaz test foi stand-ing is not met, all pleas concerned with the sub-stance of the Article 108(3) TFEU decision shouldbe declared inadmissible. In this iespect, the caselaw of the CJ and the GC shows impoitant diver-gences, as illustrated by the following examples.

In Matra, the CJ declared the action admissible onthe basis of the alleviated standing test. It did notveify whether the Cofiaz standing test was met butexamined all the pleas in law, including pleas otherthan those by which Matra sought to safeguard itspioceduial rights. It concluded that the action wasunfounded. Similarly, in Cook the Cf held the actionadmissible on the basis of the alleviated standingtest and did not verify w~hether the Cofoz test w~asmet. While it limited itself to analysing the pleaconcerning the refusal to initiate the formal inves-tigation phase, it implicitly acknowledged that itcould have examined other pleas, i e. substantivepleas, by stating that the decision had to beannulled "without there being any need to considerthe other pleas relied upon". 26

In Thermenhotel Stoiser Franz,2 7 the GC upheldthe admissibility of the action on the basis of thealleviated standing test and examined the plearelating to the v iolation of the applicant' pirocedur-al rights as well as substantial pleas. It did not vei-fy whethei the applicant complied with the Cofiazstanding test. Nonetheless, with iegard to the pleasother than the one conceirned with the safeguairdingof the procedural guarantees piovided for in Aiticle108(2) TFEU, the GC limited its assessment toexamining whether those pleas enabled any seiiousdifficulty to be identified, which should have ledthe Commission to open the formal investigationpioceduie?8 In that iespect, the GC had iecalled

20 See, in this respect, Soltec lBielec, judicial Rexiew ot State AidDecisions, European Competition Law Review 2004, p. 1 33 at p.141 ;Flynrr Remedies in EUropean Courts, in: Biondi and Others(eds.) The Law of State Aid in the FU, 2004 p. 23 at p. 294,Coulor Cras, Contentieux (de a Iegalitc dans Ie domaine desaides d'Etat: les r centes evolutions dans I'application des aticles173 et 175z du taite CE, Cahies de droit europeen 1999, Vol. 35,Nos Iland 2 p. 61,atp. 97

2] See Flyrr Remedies in EUropean Courts, in: Biondi and Others(eds.) The Law of State Aid in the [U, 2004 p. 23 at p. 294.

22 Case T-69/96, HimhUrcer Platen- und L igeihaUc and o thers v.Commission FL200] ECR 11-1037

) See also Case T- 88695 naterleimnc Vliitcchippyj "Noord-flectBrabant'v Commission [19981 ECR 11-37 13. paragraph 62.

24 Seep in tis respect the taleh preseited in Hoo6 The Staniding of

1 hind Patties in State Aid Cases, EStAL 2006, p. 269, at p. 283

25See, eg., Case C- 13/90, CIRFS and others v Commission [1993]ECR I-1125 paragraph I8 and Case 1 398/94, Kahn Scheepxiartv. Commission 1996] ECR 11-477 paragraph 47 Case Ti 114/00,Aktionsgemeirschft Rec Pt und Ligertun v. Commission [2002][CR 11-j5121, paragraph 49.

26 See Honor5 fn. 24, at p. 275.

27Case T1 lab/99, Thernien hotel Stoiser Franz and others v.Commission L2004] ECR Il-1

28 Thetmenhotel fn. 27 paragraph 91.

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that, in ordei to determine whether the Commis-sion was required to open the foimal investigationprocedure, it had to be ascertained whether theCommission wvas entitled to decide that the ques-tion of the compatibility of the aid in question withthe common market iaised no serious difficulties. 2 9

In Dan ske Busvogninwrid,3 the GC admitted theadmissibility of the action on the ground that theapplicant had invoked a violation of the proceduralguarantees envisaged at Article 108(2) TF1EU butexpressly rejected the contention of the DanishGovernment pursuant to which the GC's power ofreviewx should be contined to the issue ot whetherthe Commission should have opened the formalinvestigation procedure. 31 It then carried out a fullreviewx of the substantial pleas raised by the appli-cant but did not examine the plea relating to theviolation of the applicant's procedural rights.

In Kronofrance, 32 the GC declaired the actionadmissible ins~ofar as the applicant had iaised a pleaielating to the v iolation of its proceduial iights, asset out in Article 108(2) TFEU. It then went on toexamine the first substantial plea. It concluded, onthe basis of that examination, that the action waswell-founded and made it cleai that there was noneed to consider the othei pleas, including the pleaconceined with the violation of the proceduralrights. Nonetheless, it is worth emphasising that, inthe context of preliminary observ ations, the GCexplained that the examination of the substantialplea wxas necessary to determine whether theCommission should have entertained doubts, w~hen

29 Thermnrote, fin. 27 pairagraphs -9 and 89.

30 Case T- 57/01, Danske BUSvognmaand v. Commisi;on FL204] ECR11-917

31

32

33

34

Danske Busilonn1mTnd fn. 30, paiagraph 41.

Case T-27/02, Kronofrance v. Commission [20041 ECR 11-417

Kronofrarce fn. 32) paragraphs 47 to 56.

Kahn Scheelova~rt, fn.2.

35 Kahn Scheelova~rt, fn. 25, paiagraphs 41 to 50.

36 Case C-78/03 P. Aktonsgernernsch aft Recht und Eigerturn v.Commisszion [2005 EFR 1-10737. It sholdI be noted that the sub-stance of the judgment was upheld by the QJ in a judgment of 29Noverbei 2007 in Case C1 76/06 P Stacitwerke Schwuih;sch Hallarinc others v.Comminssion, not pub ished.

37 Opinion of Advocate Ceneial lacob in Case C-78/03 PAktiorsgerneinschatft Recht urc I igenturn v. Comm ission L200-5,ECR 1-10737, paiagraph 141.

38 Opinion of Advocate Ceneial lacob in Aktion'gerniuchaitRecht unc Ei Lentu, fin. 37 paragraph 139.

39 Opinion of Advocate Ceneial lacob in AktionsgerneinschaitRecht unc EI gentum, fin. 37 paragraph 3-5

analysing the situation of the market, as to the com-patibility of the aid with the common maiket,which should hav e led the Commission to initiatethe foimal inv estigation procedure. 33

Third, after Cook and Aklatra, there was someuncertainty as to whethei the allev iated standingtest should be applied in all circumstances. In par-ticular, the case law diverged with regard to theapplicability of the Cook and Matra case lawx to aidregimes. In Kahn Scheepi aart,34 the GC consideredthe action lodged against an Article 108(3) TiFEUdecision concerning a general aid scheme inadmis-sible. While the applicant sought the annulment otthe decision, the GC interpreted its plea as alsoseeking annulment of the Commission's refusal toinitiate the procedure provided for in Article 1o8(2)

TiFEU. Howxever, it then held that, because the deci-sion concerned a general aid scheme, pursuant towhich no indiv idual aid scheme had yet been grant-ed, theie could not be any competing undertakingswhich could invoke the procedural guarantees pro-vided for in Article 108(2) TFEU. 3

c. ARE: useful clarificationsOn 13 Decembei 2005, the CJ delivered its judg-ment in Aktionsqcrneinsc haft Recht andi Eigentuin 3 6

(hereinafter refeired to as "ARE). This judgmentcontributed to solving a number of the above-men-tioned difficulties of application and interpretationof Cook and Matra.

F-irst and foremost, in ARE, the Cl confirmed theapplicability of Cook and Matra. It did so despitehaving been invited by Advocate General Jacobs inhis opinion, and by the Commission in its defence,to abandon the approach adopted in those judg-ments and to apply the stricter Cofaz test of indi-vidual concern irrespective of the grounds onwhich the action wxas brought, i e. even wxhen theapplicant sought to have the procedural guaranteesprovided for in Article 108(2) Ti-EU safeguarded.It should be stressed that Advocate General Jacobs

justified his invitation to depart from the Cook andNla Ira case law by the complexity and the incoher-ence of the case law which Cook and Nlatra gav erise to. 38 Further, the CJ made it clear that, for anaction aimed at safeguarding procedural rights tobe admissible, the applicant merely needs todemonstrate that it is a party conceined within themeaning of Article 108(2) TFEU.39

Second, the CJ, in ARE, went beyond Cook andNla tra and formally stated that if the applicant calls


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308 1Standing in State Aid Cases: What's the State of Play? LtL~~1

into question the merits of the decision appraisingthe aid as such, the mere fact that it may be regard-ed as concerned within the meaning ot Article108(2) TFEU cannot suffice to iendei the actionadmissible. In such a case, the applicant must meetthe Cofaz standing test.40 In so stating, the CJ madethe conditions for admissibility vary depending onthe pleas in law,% advanced by the applicant. 41 In thisrespect, the judgment may be interpreted as imply-ing that EU courts may not, after having declaredthe action admissible in the light of the Cook andMatra standing test, examine pleas or argumentsother than those concerned w~ith the protection ofthe procedural guarantees enjoyed by the applicant.It must also be emphasised that, in applying theseprinciples to the case at hand, the CJ limited, andperhaps even ruled out,' the practice of the GC con-sisting in interpreting the pleas in law,% made by theapplicant as rais~ing a v iolation of the proceduralguarantees set out in Article 108(2) TFEU, with aview to declaring the action admissible. The CJdeclared that the GC eirred in considering that AREhad implicitly put forward a plea alleging failure bythe Commnission to fulfil its obligation to initiatethe formal rev iew procedure pirovided for in Article108(2) TFEU.42

Third, the judgment of the CJ in ARE also bringsinteresting insight concerning the treatment ofactions lodged by parties concerned against aidschemes. In ARE, the action targeted a decisionwxhich concerned an aid scheme. While in KahnScheepvaart, the GC had refused to uphold theadmissibility of an action brought against an aidscheme pursuant to the Cook and Mlatra standingtest, in ARE, the CJ examined the admissibility ofthe action pursuant to both the Cook and Alate a andthe Cofaz standing tests, w~ithout paying any atten-tion to the fact that the decision at issue concerneda general aid scheme. Insofar as Advocate GeneralJacobs had specifically raised the issue in his opin-ion, 43 such an abstention on the part of the Cl maybe interpreted as overturning the position of the GCin Kahn Schecpvaart.

While ARE brought about useful clarificationswith regard to the standing of third parties wishingto lodge an action against a decision adopted by theCommission at the end of the preliminary investi-gation phase, it did not solv e all the issues. Thus,there remained one main uncertainty concerninghow, in piractice, the allexviated standing test, setforth in Cook and Matra and confirmed in ARE,

should be applied. As stated above, the CJ, in ARE,made the conditions for admissibility vary depend-ing on the pleas in law advanced by the applicant.Howexver, it did not explain whether this meant thatthe plea expressly concerned with the safeguar dingof procedural guarantees should be declared admis-sible and all other pleas inadmissible or w~hetherpleas other than the procedural ones could bedeclared partly or fully admissible in case theyeffectively raised arguments pertaining to the exis-tence of serious difficulties concerning the classifi-cation of the measure at issue or the assessment ofits com~patibility with the common market, imply-ing that the formal investigation should have beenopened. F urther, after ARE, the question of theapplicability of the alleviated standing test to aidregimes remained open insofar as the CJ failedexpressly to take a stance in this regard.

Bearing in mind the above oxveview, the 2008-

2009 case law of the CJ and the GC wvill now berexviewed.

2. Recent case law:useful clarifications, but unresolvedpractical issues remain

a. Krono trance: the refusal to grant partiesconcerned wider access to EU courts

The judgment of the CJ in Joined Cases C-75/05 Pand C-8o/o5 P, Germany v. Aionofance45 was de-livered on 11 September 2008. Factually, the casesconcerned investment aid granted by the Germanauthorities to Glunz and OSB for the construction

40 Opinion of Advocate General Jacobs in AktiorsgerneinschaftRecht und Eigerntum, fn. 37, paragraph 37.

41 H-onore, , n. 24, at p. 274.

42 Opinion of Advocate General Jacobs in AktiorserneinschatRecht und Eizgeitum, fn. 37, paragraph 49.

43 Opinion of Advocate General Jacobs in AktiorsgerneinschaftRecht und Eigeritum, fn. 37, paragraphs I 11 119 and 142

44 See, in this respect, tw~o judgments delivered on 20 September2007 respectively, in Cas T 254/0-5. F~chveremnigung,MineralIhseiindustrie v. Commision, not reported and Case T-375/ 03, F~cIvereiniung, AlirerilfaserincIustrie v. Cormssion,not reported. See, also, Schimauch, Locus Standi and Article88(3): No Cure for the Plaurnann bluE 11, [Uropean Law Review2008, p. 21.

4-5 joined cases C-75/0-5 P and C-80/05 P Germany v.Kronofrarce,[2008 ECRI1-669.

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of an integiated wood processing centre. Germanyhad notified this aid to the Commission whichdecided, in an Aiticle 1o8(3) 1 FLU decision, not toiaise any objections. Subsequently, an action forannulment was brought by a French competito,Kronofrance. The GC held the action admissible, onthe basis of the Cook and Ala tra standing test, 4 6 andannulled the contested decision. Germany, Glunzand OSB lodged an appeal against the GC's judg-ment. In their first plea, they contested the GC'sfinding that the action brought by Kronofrance wasadmissible.

With regard to this issue, the Cl w~as invited byAdvocate General Bot to simplify the existing caselawx As noted above, in ARE, the Cl made the condi-tions for admissibility dependent on the pleas inlawx advanced by the applicant, but did not elabo-rate upon the practicalities of such a dictum.Unsuirpirisingly, Adv ocate General Bot underlinedthe difficulties of application of such case law 4

7 andmade it cleai that the restirictions on the iight ofpeirsons to obtain judicial revijew must be easilyunderstood.~ He further criticised the applicationof two distinct sets of admissibility conditions asbeing aitificial, insofar as the aim pursued by theapplicant is the same whethei it inv okes the pro-tection of its pioceduial rights oi challenges themerits of the decision appiaising the aid. ToAdvocate Geneial Bot, in both situations, the appli-cant seeks, by its action, the initiation of the formalinvestigation procedure. 49 Accordingly, he pro-posed defining the conditions for the admissibilityof actions brought against State aid decisions only

46

47

Kronofrarce fn. 32) paragraphs 32 to 35.

Opinion ot Advocate General Bot in joined cases C-750_5 13 andC-80/05 P, Ceiniany v. Kronotrance FL008] ECR 1-6619, paid-graph 107

48 Opinion of Advocate General Bot in Gecmam, v Kronofrance,fn. 47 paragraph 105

49 Opinion of Advocate General Bot in Gecmam, v Kronofrance,fn. 47 paragraph 1 06.

50 Opinion of Advocate General Bot in Germnrv Kronofrirce,fn. 47, paragraph 108.

51 Opinion of Advocate General Bot in Germnrv Kronofrirce,fn. 47, paragraph I 10.

52 Germarn v. Ktonotrmnce, fn. 45, paragraphs 42 and 44.

53 In this respect, it should be recalled that admissibilIity rules raisean absolute bar to proceeding w~hichi the EU juidicatuie mayconsider at any time, even of its own motion. See, e g.Case C1 7 6/06 P, Staeftwerke Schvv~ah;sch Hall and others v.Cormssion, not published, paragraph 18.

in ielation to the purpose of the action, not to thepleas in law invoked in suppoit of it. 50 In otherwords, hie suggested applying the Cook and Matraalleviated standing test, based on the status of theapplicant as a conceined party, to all actionsbrought against decisions adopted on the basis ofArticle 108(3) T1FEU.5

T1he Cl turned down Advocate General Bot's sug-gestion and reaffirmed the applicability of Cookand Mlatra, as confirmed by ARE. The CJ held that,since Kronofrance w~as seeking annulment of thecontested decision on the ground that theCommision had wrongly refused to initiate the tor-mal investigation procedure provided for in Article1o8(2) 'iFEU, there was no need for the GC torequire proof that the position of Kronofrance inthe market concerned wxas substantially affected bythe adoption of the contested decision. 32

Two main comments may be put conceining thejudgment of the CJ and the opinion of AdvocateGeneral Bot. First, it is iemaikable that the CJ fullyupheld the GC' treatment of the different pleasraised by the applicant. 53As mentioned above, theGC declared the action admissible because theapplicant had expressly raised a plea ielating to thev iolation of its procedural rights, as set out inArticle 108(2) TFEU, but did not examine that plea.It limited its assessment to the analysis of the fiirstsubstantial plea, which it considered to be well-founded. Nonetheless, as explained above, the GCmade it clear that the examination of the substan-tial plea w~as necessary to determine whether theCommision should have entertained doubts, whenanalysing the situation of the market at issue, as tothe compatibility of the aid with the common mar-ket, wxhich should have led the Commission to initi-ate the formal investigation procedure. The Cl'sendorsement of the GC's approach illustrates theuncertainties, referred to earlier in this article, as tohowx the ARE case law,% should be applied. Whilethere is no question the GC relied on the expressinvocation of the refusal to initiate the formalinv estigation piocedure to conclude to the admissi-bility of the action, in substance, not only did itanalyse pleas that weie not concerned with thesafeguarding of the applicant's pioceduial guaran-tees, but it also did not analyse the v ery plea con-cerned with those procedural guaiantees. It is alsostr iking that the CJ did not comment on what maybe viewed as the GC's reinteipiet ation of the firstplea as seeking the annulment of the Commissions


EStAL 212010

310 1Standing in State Aid Cases: What's the State of Play? ~~L ~ 1

iefusal to initiate the foimal investigation proce-dure. By failing to do so, the CJ could be consideredto be contiadicting its own statement in AR.

Second, Advocate Geneial Bot's suggestion toextend the Cook and Matra case law to all actionsbiought against decisions adopted on the basis ofArticle 108(3) TFEU might indeed have been desir-able insofar as it w~ould hav e given individualsgreater access to the EU judicature in an area wherethe Commission has been conferred w ith exclusiveand w ide pow ers of appraisal as to the assessment ofthe compatibility of the aid w ith the common market. However, Advocate General Bot's reasoning isbased on a contestable premise. For him, the aimpursued by the applicant is the same w hether itinvokes the protection of its procedural rights orchallenges the merits of the decision appraising theaid, i e. the applicant seeks the initiation of the formal investigation piocedure. While the outcome of asuccessful challenge lodged by competitois againstan Article 108(3) IEEU decision must be the open-ing of the above-mentioned procedure, one can alsoimagine that interested par ties might benefit fiom ajudicial ieview in othei w~ays. Advocate GeneialMengozzi rightly explained, in his opinion in BritishAggregates, 56 that, if EU courts weie to review~ thesubstantial pleas as w~ell as the proceduial ones, theapplicant w~ould not only secure initiation of the foi-mal investigation pioceduie but may also manage topredeteirmine the substance of the decision resultingfrom the formal investigation procedure.

b. British Aggregates: an attempt to tackle thedifficulties of application of ARE

The judgment of the Cl in British Aggregates 3 wasdelivered on 22 December 2008. Both AdvocateGeneral Mengozzi and the Cl attempted to simplifythe existing case law concerning the standing ofcompetitors lodging an action against an Article1o8(3) Ti-EU decision.

T1he case concerned the UK Finance Act 2001,

wxhich imposed a levy on so-called virgin aggregate.This act provided foi an exemption fiom such levyfoi mateiials that arose as by-products oi wasteproducts from other processes and foi recycledaggiegate. The puirpose of this taxation scheme wasecological in natuie -to reduce the need for unnec-essary extraction of virgin aggiregate and encourageiesouice efficiency. The United Kingdom notifiedthis taxation scheme and the Commission adopteda decision not to raise any objections, pursuant to

Article 108(3) TFEU. Subsequently, the BritishAggregates Association, whose members compiisesmall independent quariying companies in theUnited Kingdom, challenged that decision befoiethe GC."8

Aftei hav ing observed that the applicant did notmerely seek to challenge the Commission's refusalto initiate the formal investigation procedure, butalso called into question the merits of the contesteddecision, the GC verified if the applicant compliedwith the Cofaz standing test, i e. whether the meas-ure at issue was liable to have a significant effect onthe position of one or more of the applicant's mem-bers on the market for aggregates. 9 On this basis,the GC declared the application admissible. How-ever, it dismissed the challenge brought by theBritish Aggregates Association, w~hich subsequentlylodged an appeal with the Cl.

The CJ upheld the GC' appiaisal conceiningadmissibility. H-owev ei, it decided to annul the judg-ment of the GC, with regard to the merits of thecase, and ieferied the case back to the GC. Asregards the admissibility of actions lodged by com-petitoirs of aid recipients against decisions taken atthe end of the preliminaiy investigation phase, theinteiest of the procedure before the CJ is twofold.

On the one hand, the CJ declined AdvocateGeneral iMengozzi' invxitation to tackle the com-plexity of the existing case law and the problemsinvolved in actually applying it, 60 and decided tostick to the traditional Cook and Mlatra case lawx, as

-,4 In tis respect, it should be noted that, while the judgment of theGC was delivered before the judgment in ARE, the latter juidg-ment was delivered while the wvritten procedure before the Qiwa ongoing.

-5 ee, in this respect, Birennes, The Standing of the Comnpetitors ofthe Aid Recipient in State Aid Cases, in. Kannin Ii, KoijIs, Rosas

eUs Comnpetition Law in Context, [ sa in Honour of Virpil-iiii 2009, p. 321, atp. 334.

-6 Opinion of Advocate General Mengozzi in Cs C-487/06 PBritish Aggregates As~socia~tion v. Commris~sion FL0086[CR 1-10-05, paragraph 71.

_- Case C-487/06 P3 Brtish Aggregates Associition v.Comminssion,

[0081 ECR 1-005.

-8 Case T 21 0/02 British Aggregates v.Cormssion [2006]ECRI 11279.

59 British Aggreg'ates, fn. 58, paiagraph 54.

60 Opinion of Advocate General Mengozzi in Cs C-487/06 PBritish Aggregates As~socia~tion v. Commij'sion, not yet reported,paragraph 73. The problems~ involved in actually applying theexisting case law mentioned by Advocate General Mengozzi, inhis opinion, ar described above, (p. 308. They result fromn thefact that the Qi made the conditions for admissibility varydepending on the pleas in law advanced by the applicant.

EUR-DPEAN STATE AID LAW QUARTEPLY

EStAL 212010

L~t\L O1OStanding in State Aid Cases: What's the State of Play?2 31!-

confirmed in ARE In his opinion, Advocate GeneralMengozzi, after having recalled that the CJ 's caselaw rules out any possibility of iemedying the tail-ure to raise a plea alleging infringement of the pro-ceduial guarantees recognised by Aiticle 108(2)

TFEU by iefrining pleas which have actually beenraised, suggested that it is sufficient to treatgrounds that formally seek to establish the exis-tence of State aid or the incompatibility of that aidw~ith the common market as being limited, in sub-stance, to claiming that there are serious difficultiesconcerning the classification of the measure or theassessment of its compatibility w~ith the commonmarket .61 Hence, Advocate General M~engozzi sug-gested that judicial review of Article 108(3) Ti-EUdecisions should be limited in every case, i e.regardless of the basis for the applicant's locus stan-di, to verifying whether the conditions justifyingnon-initiation of the formal investigation pirocedureare satisfied, or to establishing that there are noserious doubts that the measuie at issue does not

61 Opinion of Advocate General Nengozzi in British AgfregatesAssociation, fn. 6, paragraphs 70 and72

62 Opnio of Advocate General Nengozzi in British Ag,0regates

Association, fn. 6, paragraph75

63 British Agg~regates Associa~tion, fn. 57, paragraph 16.

64 British Agg~regates Associa~tion, fn. 57, paragraph 31.

65 QCs C-319/07 P 3F v. Comminssion, not yet reported.

66 judgment of 23 April 2007 in Case T 30/03, SID v. Commissior,not reported.

67 It concluded, first, that neither the applicant asa seafarers tradeunion nor its members ar comnpetitors of the recipients of the aidaitissue as identified in the conktestd decision, namely the own-ers of ships registered in the DIS register (paragraph 31). Second,the CC stated that it was not excluded that bodies representingthe employees of the Lundertaking in ri ept of aid might, as pai-

teconceirned w~ith in the meaning ot Articl e 108(2) EC, suIbmnitcomments to the Comm ission on considerations ot a socialnature. How~ever, in the present case, it appeared that the socialaspects aiising from the DIS tegistel deriyed primarily from theestablishment ot the register tathei than fromn the accompanyingfiscal measuire (paragraphs 3 and 36). Third, the CC held thatthe applicant had not shown that its own interests as a negotiatorwvere liable to be directly affected by the aid in question (para-graph 38).

68 3F, fn. 6-5. paragraph 78

69 The CQ based its conclusion on two grounds First, that the CCmisinterpreted the rEeevnt case law and consequently tailed toaddress the appellants argument relating to its competitive position in relation to other trade unions in the negotiation of collec-tive agreements tor seafarers (paragraph 60). Second, the CJ heldthat the CC, instead of examnining whether there Was a Sufficient-ly direct link between the social aspects ot the DIS negistet andthe subject-mattel oi the contested decision, ouight to have exam-ned the social aspects of the fiscal measures at issue in oider to

assess whethet the appellant's arguments based an those guide-ine suficed to estabis h its status af a party conceirned w~ith in

the meaning af Article '182 IC (paragraph 69).

constitute aid oi is compatible with the commonmarket.6 Nevertheless, the CJ confiirmed that a dis-tinction had to be drawn between the conditionsfoi admissibility depending on the type of plea inlaw raised by the applicant.

On the othei hand, the CJ decided to tuirn downthe Commission's invitation to apply a stricterstanding test than the one set out in Cook andMlatra in cases where the aid scheme is of a gener-al character. 63 Accordingly, the CJ made it clear thatthe scope of the existing case lawx is not restricted toindividual aid decisions and declared that the gen-eral scope of the contested decision is not such as toconstitute a barrier to the application of the Cookand Matra case law. 64 Interestingly, the CJ relied onARE to arrive at this conclusion thereby confirmingthat ARE could indeed, as mentioned above, beinterpreted as overturning the position of the GC inKahn Schecpvaai t.

c. 3F: a perfect illustration of the complexityof the existing case law

The judgment of the CJ in 365was deliv ered on9 July 2009. This case peifectly illustrates the cornplexity of the existing case law.

The case concerned Danish laws intioducing var-ions fiscal measuies -in particular an exemptionfrom income tax i elating to seafarers employedon board vessels registered in the Danish Inter-national Registei of Ships (the 'DIS register").F-ollowing a complaint lodged by 3F, formerlySpecialarbeiderforbundet i Danmark (SID) -thegeneral trade union for workers in Denmarkthe Commission carried out a preliminary investi-gation and concluded by stating that the said fiscalmeasures constituted State aid that w~as compatiblewith the common market in accordance wxith Ar-tidle 107(3)(c) T1FEU.

31F lodged an action against that decision withthe GC. 66 The GC declared the action to be in-admissible. To that end, it relied on the Cook andMlatra standing test insofar as the applicant ex-pressly sought to safeguard the procedural rightsav ailable to it undei Article l08(2) TFEU and heldthat 3 F could not be considered to be an inteiestedparty.6 7 3F lodged an appeal against the judgmentof the GC. The CJ confiimed that the GC was coirectin assessing the admissibility of the action on thebasis of the Cook and M-atra alleviated standing testand that the application of the Plaumann line of


EStAL 212010


case law was not relev ant.6 8 H-owevei, it decided toannul the GC s order of inadmissibility. 69

With regaid to the conditions ot admissibility to besatisfied by competitors lodging an action againstan Article 108(3) TFEU decision, the interest of thejudgment of the CJ is revealed by a parallel reviewof that judgment and of the opinion of AdvocateGeneral Sharpston, delivered on 5 March 2009. 0 Inthis respect, two remarks may be made.

First, in her opinion, Adv ocate General Sharpstonunderlines the complexity of the existing case lawxand proposes simplifying it, thereby echoing otherAdvocates (General in previous cases. 71 AdvocateGeneral Sharpston thus observed that, through AREand Br~itish Aggregates, the Cl has established "a ver-itable tightrope along which applicants and theiradvocates must gingerly advance".7 She then rec-ommended the CJ approach the application on thebasis of what is~ actually sought, rather thanwhether the applicant relies on arguments thattouch the substance of the Commission's deci-sion. 7

The CJ, in its judgment, 74 decided not to followthe Advocate General's advxice and maintained itstraditional case laxx, which is one that distinguishesthe conditions of admissibility depending on thepleas raised by the applicant.

Second, Advocate General Sharpston's interpre-tation of the existing case law, in particular BritishAggregates, is notable and perfectly illustrates thedifficulties involved in applying the existing caselawx For Advocate General Sharpston, the CJ's judg-ment in British Aggr~egates implies that if a partyincludes, in its application, a plea as to the merits ofthe contested decision, the test for standing to beapplied is that set out in Plaurnann and the subse-quent line of case law M\oreover, in AdvocateGeneral Sharpston's viewx, British Aggr~egates sug-gests that it is not possible for the GC to sever thepleas in lawx brought before it, so that when theapplicant does not meet the Plaumnann criteria foradmissibility in relation to the challenge on themerits, the CJ might apply the allev iated standingtest in respect of the procedural pleas. 73On thebasis of this interpretation, Adv ocate GeneralSharpston considered that the Plautnann test forstanding was to be applied because 3F not onlyinvoked the protection of the procedural guaran-tees prov ided for in Article 108(2) TFEU but alsocalled into question the merits of the contesteddecision. 7

In its~ judgment, the CJ dev eloped an alternativereasoning. To this end, it made an effort to clarifythe existing case law.7 Thus, the C4 explained thatwhile the applicant may raise arguments concern-ing the merits of the contested decision, the use ofsuch aiguments cannot have the consequence of"changing the subject-matter of the application oraltering the conditions of its adm~issibility". 8It

then stated that, in 31-, the applicant explicitlyraised a plea in law,% the aim of wxhich was the safe-guarding of its procedural rights under Article108(2) T1FEU,7 which implied that the applicanthad to establish before the GC that it w~as a partyconcerned w~ithin the meaning of Article 108(2)

T1FEU, and the application of the Plaurnann line ofcase lavx was prima facie not relevant. 80

Yet again, 3F highlights the difficulties involvedin the application of the existing case lawx on locusstanh of competitors of aid recipients. While the CJmade it v ery clear, in this case, that if a plea con-cerned with the protection of the procedural guar-antees is explicitly raised by the applicant, the alle-v iated standing test must apply, it did not explainhow, in such a case, the pleas concerning the meritsof the contested decision must be handled. In thejudgments which will be rev iewed in the followingsection, the GC had to decide how to deal with suchpleas in law.

70 Opinion oi Advocate General Sharpston in Case C-31 9/07 P, 3Fv. Commission rot yet reported.

71 See Opinion of Advocate General Mengozzi in British AggregitesAssociation, fn. 6, and Opinion oi Advocate General Bot in

Germain y vKroroi~rce fin. 47

72Opinion oi Advocate General Sharpston in 3F, fn. 70,paragraph 42)

73 Opinion oi Advocate General Sharpston in 3F, fn. 70,paragraph 43.

74 QCs C31 9/07 P 3F v. Commission, not yet reported,paragraphs 28 to 34.

75Opinion of Advocate General Sharpston in 3F. fn. 70paragraph35

76 Opinion ot Advocate General Sharpston in 3F. fn. 70paragraph 46.

77See, in this respect, 01e1t, La CICF precise les conditions derecevabiit6 auxquelles un syndicat de trnaiIleurs peut exercerun tecouiis conti une decision de la Comnmission de ne pas sou-lever d'objections a I encontre d'Une aide d EMat Concurrences2009, p. 146.

78 3F, fin. 6-5. paragraph 3-5

79 3F in. 65, paiagraph 36.

80 3F in. 65, paragraph 78.


EStAL 212010


3. Recent GC case law:laudable attempts to tacklethe unresolved practical issues

As explained above, the case law shows importantdivergences with regard to the treatment of pleasother than the plea alleging an infringement of pro-cedural rights. T1he recent case law,% of the GCdemonstrates a certain coherence and may beviewxed as a signal that the GC has now~ chosen oneparticular method of handling pleas concerning themerits of the contested decision, in case an actionw~as declared admissible on the basis ot the allevi-ated standing test set out in Cook and Matra, andconfirmed in ARE. One cannot help but observethat the GC seems to be followxing the approach it

had developed in Thermenhotel, wxhich has beendescribed above.

a. Overview of three recent cases

aa. KronoplyIn Kronoply 81 delivered on io December 2008, theGC inaugurated a new method of handling pleasconcerning the merits of the contested decision,which almost certainly found its inspiration inTherinenhotel.

The applicants, Kronoply and Kronotex, lodgedan action against an Article 108(3) TFEU Comnmis-sion decision not to object to an indiv idual aid noti-fied by Germany. Tihe aid was granted to LellstoffStendal for the construction of a cellulose factoryand for the establishment of a w~ood procurementundertaking and a logistics undertaking.

With regard to admissibility, the GC proceededin two steps. While the first step is classic, the sec-ond is more innovative. First, after having recalledthe existing case lai,% the GC observed that theapplicants had raised pleas concerned both w~ith theCommission's refusal to initiate the formal investi-

81 Cas cT 388/02, Kroroply and Krorotex v Commission, notreported.

82

83

84

85

86

87

88

Ktonop,, fn. 81, paragraph 69.

Krono[plv fn. 81, paragraphs 7 and 78.

Ktonop,, fn. 81, paragraphs 81I and 82.


Krono[plv fn. 81, paragraph 86.


Case T-388/03 Deutschie Post and DHL Interna~tiona vICommission [2009] ECR 11199.

gation procedure and with the mrneits of the Cornmnission' decision. Accordingly, it firs~t set out toexamine whether the applicant met the Flaurnannstanding test. It found that this was not the caseand declaied the part of the action seeking to annulthe contested decision on its meirits inadmissible.82

T1he GC then reviewed the applicant's standing asregards its procedural pleas, by referring to the alle-viated Cook and Matra standing test. It concludedthat the applicants were parties concerned withinthe meaning of Article 108(2) T1FEU, wxhich impliedthat the action had to be declared admissible inso-far as the applicants sought to protect their proce-dural rights. 83

Second, the GC set out to determine w~hethereach of the pleas in lawx raised by the applicants wasadm~issible. In this respect, it first recalled that AREhad ruled out any interpretation of the pleas con-cerning the mriits of the contested decision as actu-ally iaising a violation of the proceduial guaranteesset out in Article 108(2) TFEU. Despite ARE, the GCheld, in line with Thermenbotcl, that it was notbaried from rexiewing the pleas concerned withthe meiits of the case, with a view to veiifyingwhethei they contained any elemnents that enabledany serious difficulty to be identified, which shouldhave led the Commnission to open the formal inves-tigation procedure. 1 Accordingly, the GC statedthat assessing the admissibility of the proceduralplea involved a rev iew of the two pleas, which con-cerned the merits of the contested decision, w~ith aviewx to determining whether they contained relat-ed arguments.8 On that basis, the GC concludedthat the arguments raised in the context of one ofthe pleas concerning the merits of the contesteddecision had to be reviewxed together with the argu-ments raised in the procedural plea, insofar as theyaimed at contesting the Commission's decision notto open the formal investigation procedure.86 Incontrast, the GC held that the other plea concerningthe merits of the contested decision was inad-mnissible. 87

The GC then dismnissed the action.

ah. Deutsche PostIn Deutsche Post, 88 which was deliveied on 19

February 2009, the GC may be said to haxve goneone step fuithei than it did in Kronoply.

The case concerned a capital injection by theBelgian authorities in favour of La Poste. By deci-sion Of 23 July 2003, the Comnmission decided to


EStAL 212010

314 1Standing in State Aid Cases: What's the State of Play? ~~ ~~1

iaise no objections following the preliminary inv es-tigation procedure, insofar as the notified measuredid not constitute State aid. Deutsche Post and DHILInternational, competitors of La Poste, lodged anaction for annulment against the Commission'sdecision.

As in Kronoply, the GC dealt w~ith admissibilityin two successive steps. First, it reviewed the admis-sibility of the action and, second, it reviewed theadmissibility of each plea. With regard to theadmissibility of the action, its reasoning is identicalto the one in Aionopiy. On the basis of this reason-ing, it concluded that the applicants had not estab-lished that their position on the market could besignificantly affected by the aid in question"0 butthat the applicants had the status of concerned par-ties w~ithin the meaning of Article 108(2) TiFEU 0

and that, accordingly, the applicants had standingto bring proceedings0

With iegard to the admissibility of each plea, theGC went further than it had done in Krono ply. Afterhaving recalled the relevant case law more brieflythan in Kronoply, 92 the GC assessed the admissibil-ity not only plea by plea but also argument by argu-ment. This led it to severing the pleas in law with aview to taking a position on the admissibility ofarguments raised in support of those pleas.

The GC then found that there was ev~idence ofserious difficulties and annulled the contested deci-sion.

ac. Scheucher FleichIn Scece~esh 93 hich w~as delivered on i8November 2009, the GC followed the same type ofapproach as in Kronopiy and Deutsche Post withregard to admissibility. While, in Scheucherl-leisch,the GC's reasoning differed slightly from that fol-lowxed in Kronoply and Deutsche Post, the GCassessed admissibility not only plea by plea but alsoargument by argument, as in Deutsche Post.

T1he case concerned aid measures consisting inencouraging the production, treatment, processingand sale of agricultural products in Austria bymeans of bio-labels and quality labels, about whichthe Commission had r eceyived a complaint. TheCommission had concluded the preliminary invxes-tigation procedure by an Article 108(3) TFEU deci-sion not to raise any objections. Accordingly,Scheuchei Fleisch, Taueinfleisch Veitriebs, Wech-Kdintnei Tiuthahnveraibeitung, Wech-Gefluigeland Johann Zsifkov ics, the applicants, which spe-

cialised in the slaughter and butchering of animalslodged an action against this decision with the GC.

The GC' s reasoning with regard to admissibility,and in particular individual concern, did not followthe two-step reasoning of Kronoplvy and DeutschePost. First, the GC observed that the applicants ques-tioned both the Commission's refusal to initiate theformal investigation procedure and the substance ofthe decision appraising the aid. Accordingly, it heldthat it had, in order to determine whether the appli-cants were entitled to bring the action, to analyse,first, their standing to bring proceedings to enforcetheir procedural rights and, second, their standing tobring proceedings to challenge the contested deci-sion's substance. 94 Second, it stated that the proce-dural plea was admissible because the applicantswere parties concerned within the meaning of Ar-tidle 108(2) ITEU.93 third, it made it clear that, inprinciple, pleas relating to the merits of the contest-ed decision were inadmis~sible because the applicantshad raised no argument of law or fact to establis~hthat they satisfied the stricter test for standing set outin Cofaz. 9 Fourth, the GC held that it was none-theless in a position to examine other arguments

which the applicants advanced, including those sup-porting pleas concerned with the merits of the con-tested decision, in order to verify whether they con-tributed elements in support of the procedural plea.9

In this respect, it referred to Fives Lille Cail, pursuantto which the GC mus~t interpret an applicant's pleasin terms of their substance rather than of their clas-sification.9' Hence, as it had done in Deutsche Post, itconcluded to the admissibility of parts of the pleasconcerned with the merits of the contested dccisionthat supported the procedural plea.99

90

91

Deutschle Post fn. 88, paragraph 47.

Deutsche Post, fn. 88, paragraph -52

Deutsche Post fn. 88, paragraph 7

92 Deutsche Post fn. 88, paragraph 66.

93l Case T 375-04(U Iveucher Flic andothers . Commision, not

yet reported.

94 ScheUcher FleiscI1 fn. 93 paragraph 50

95 Scheucher Fleisch fn. 93, paragraph -6.

96 ScheUcher FleiscI1 fn. 93 paragraphs 57, 8 and 61.

97 ScheUcher FleiscI1 fn. 93 paragraph 62.

98 judgment of 15 December 1961 in joined Cases 1 9/60 21/60261 and 361, Fives Lille Cail io. v. High Authiortj, 1961]

ECR _55 P. -88.

99 ScheUcher FleiscI1 fn. 93 paragraph 64.


EStAL 212010


The GC then found that there was evidence of sei-ous difficulties and annulled the contested decision.

b. A mnuch commiented case lawA number of scholars~ hav e expressed severe ci-ticism about Kronoply'0 0 and Dcustche Post,' 0'notably because these cases, instead of simplifyingthe case lavx, introduced even greater uncertainty.To a certain extent, it is correct that Kronopiy,Deutsche Post and Scheucher 1leich may seem toconfirm that the existing case lavx introduces, in thewxords of Advocate General Bot, 102 an artificial dis-tinction betwxeen the conditions, for the adissibii-ty of one and the same action, in that the GCdeclared substantial pleas inadmissible but none-theless examined some of the arguments raisedunder those pleas for the purpose of reviewingprocedural pleas. Furthermore, the judgments inKrono ply, Deutsche Post and Scheucher Fleisch may

I1OSee Idot, De la diffiute pour les tiets de remetthe en cause Lined~cision de ai Commission d~cIarant uine aide compatible issue de la phase pielurinnue, Fmope 209/2 comm89C a lorrel, Le Tribunal de Premiere Instance stitue sur uine res-triction des conditions d'acces au preto ire cmmuLinauLite et sui

Ia porte dU controle jUridictionnel SUr Ies dec ision de non-ouiveituie de la phase formelle des aides, Concuirrences 2009/I,P. 183.

'101 See Vhitrepierre, L 1 PICE admet la tecevabilite ci'in recoursmixte conre Line decision de Ia Commission de ne Pa SouIeverd'objections a I nconti d'une pletendue iv sire d'aide ci Eat,des ors que le recierantes ont la qUalite de concurrentesditectes dui ben ticiahl de cette mesuire Concuirrences 2009/2,P. 180. On a less critical note, see Idot, Obligation Pour IaCommrission ci ouvrii Line phase d'exarnen, Europe 2009/4,comm. 164; Chevnel, Du cocntrole dU Tribunal ur le d~cisionsde la Commrission adoptees a 'Issu de la ploceduir pelirinaired'exann RevuIe Lamyv de la Concurrence 2009/19, P. 47

102 Opinion of Advocate General Bot in Gern 'ryv Kronofrirce fin.47, paragraph '106. See, also Opinion @1 Advocuate GeneralJacobs in Aktiorsgenenschift R~echt urd Liger tum fn. 37 para-graph '102.

103 See, in this respect, Miitrepierre, Le TPIC[ admet Ia recevabilited'Lin tecours rnixte cornn une decision de la Commrisioun de nepas oulever d'objections a I encontre d'Unc prendue mesured'aide d Etat, des lors que les iequ rantes ont la quialite de con-currentes directes du b~nEficiaire de cette mesure, Concurrences2009/2 p. 180.

1 04The notice of apea against Cs T 388032, Kroro~InadKionotex v. Commuissionr wxas published in 01 C '102 of I May2009, P. 1-. The notice of appeal against Case T -388/03,Deutschle Post and DHL International v. Commi'sion wxas pib-lished in OJ C 167 Oil 18 July 2009, P. 3. The notice of appealagainst case 1 37504, ScheUcher FleisLI1 and othersCormssion will be published in the OJ in 2010.

1 0-5 See Nehi, JUdicial Protection of Complainants in FC Stite AidLaw: A Silent Revolution?, EStAL 2009, p. 401.

106S jStrava, fin. II

'107 Case T-351/0 Deutsche Bahn v. Commission [2006 11-1047.

arguably geneirate some legal uncertainty insofar asthe GC selected elements of pleas concerning themerits of the contested decisions which, in its view,weie linked to the piocedural pleas, and declaredthem admissible. In this iegaid, it is undeniablethat the extent of the ieview cairied out by the GCwould be more predictable if it wxere to systemati-cally dismiss complex pleas, i e. pleas raising bothprocedural and substantial arguments, as inadmis-sible, 1 03 and if it only upheld the admissibility ofpleas which explicitly raise arguments concernedwith the protection of the procedural guaranteesenjoyed by the competitors of the aid recipient.

Howxever, these judgments must also be praisedfor attempting to tackle the practical problemsinvolved in applying the existing case lawx, in parti-cular the manner in which pleas other than thoseexpressly invoking a violation of the proceduralguarantees piovided foi in Article 108(2) TFLIJshould be handled. As Kronoply, Deutsche Post andScheiichei Fleich have been appealed,"104 and sincethose appeals question the legality of the appiroachadopted by the GC w~ith regaid to admissibility, theCJ will hopefully explain how it proposes to tieatpleas~ relating to the merits of the contested decision.

Ill. Standing of Complainants:a Revolution""~?

1 . Background: the nature ofthe letter to complainants indicatingno further action

T1he recent case lawx relating to the standing of com-plainants seeking to challenge the letter of theCommission informing them that no further actionwould be taken on their complaint must be re-viewxed in the light of the past case lavx, in particu-lar Sytraval,' 06 a case to which Regulation 659/1999was not applicable, and Deutsche Bahn,' 07 a case towhich that regulation wxas applicable. In thosecases, the CJ and the GC, handling the question ofthe nature -challengeable oi not -of such a letter,adopted diveigent reasoning but ariived at conclu-sions~ that aie not too dissimilar.

In Sytraval, the CJ considered that the letterinfoirming the complainant that theire were insuffi-cient grounds foi taking a view on the case undercomplaint had to be regaided as an informal com-munication. Accoidingly, such a lettei could not be


EStAL 212010


considered to be a challengeable act within themeaning of Article 263(4) TEUh The CJ ieasoned asfollows. First, since the Commission decision wasadopted at a time when there was no proceduraliegulation, it observed that neithei the Treaty noiEU secondary legislation laid down the proceduralsystem for dealing with complaints objecting to

grants of State aid. 108 Second, it made it clear thatdecisions adopted by the Commission in the field ofState aid are addressed to the Member States con-cerned. For the Cl, this is also the case where, aftera complaint was lodged, the Commission adoptedan Article 1o8(3) Ti-EU decision not to raise anyobjections. Accordingly, w~here the Commissionadopts such a decision and proceeds to inform thecomplainants of its decision, it is the decisionaddressed to the Member State w~hich must formthe subject-matter of any action for annulmentwhich the complainant may biring, and not the let-ter the complainant ieceived informing it of thedecision.' 09 H-ence, the CJ concluded that, while itmay be regrettable that the Commission did notinfoim the complainants of its position by sendingthem a copy of a propeily reasoned decisionaddressed to the Membei State concerned, the GCeried in law in finding that the contested decisionconstituted a decision addressed not to that Statebut to the complainants.' 10 Nonetheless, in thiscase, the CJ found that the GC's eiror of law did notinvalidate its judgment since the Commission had

stated, in the letter, that the measure at issue couldnot be considered to be a State aid w~ithin the mean-ing of Article 107(1) Ti-EU Ill

In contrast, in Deutsche Bahn, 1 12 the GC devel-

oped reasoning seemingly based on the idea thatthe Commission enjoys some discretion as to howxit should react to a complaint, i e. either on theground of Article 20(2) of Regulation 659/1999, inthe form of an informal communication, or on theground of Article 4 of that regulation, in the form ofa challengeable decision. T1he GC ruled that theCommission's letter informing the complainantsthat no fuithei action would be taken on theii com-plaint was a decision within the meaning of Article

4(2) of Regulation 650/999, even though theCommission had not addressed it to the MembeiState. The GC based its conclusion on the fact thatthe lettei addressed to the complainant expresslystated that the measure in question did not consti-tute aid within the mieaning of Article 107(i)TEUh 1 13 Accoidingly, it concluded that the letter

was a challengeable act and held the action to beadmissible.

While Deutsche Balm seemed to constituteprogress compared to Sytraval, in terms of access tojustice enjoyed by complainants, insofar as it didnot completely rule out the challengeable natuie ofthe Commission's letter informing the complainantthat no further action w~ould be taken, it still left thelatter w~ith no right of access to EU courts when theCommission did not express any viewx w~ith regardto the nature of the measure at issue or to its com-patibility w~ith the common market. The recent caselaw,% has now tackled this issue.

2. Athinaiki: a significant evolutionof the case law

Athincuki' 14, a case in which the CJ's judgment wasdelivered on 17 July 2008, marks a ieal and signifi-cant ev~olution of State aid case law,~ conceirned inparticular with the right of access to EU justiceenjoyed b~y complainants.

a. Opinion of Advocate General Bot andjudgment of the CQ: samne outcomebut divergent reasoning

In Athinaiki, the dis~pute related to a piocedure forthe awaid of a public piocurement contract with av iew to disposing Of 49 %o of the capital of the

Casino Mont Parnes. There wxere twxo competingundertakings, the Hyatt Regency consortium andthe Casino Attikis consortium. The contract wasawarded to the Hyatt Regency consortium. Subse-quently, a member of the Casino Attikis consor-tium, which was later taken over by AthinaYki,lodged a complaint with the Commission's Direc-torate General for Competition. The latter repliedby letter informing the complainant that it haddecided to take no further action on the complaint.

10~8 SitLi al, fn. f1, paragraph 44.

109S Svtravai, fn. I] paragraph 4-5

'if 5 OSI al fn. 11, paragraph 46.

'ifI Si tal fn. f1, paragraph 47

112 Deutsche B Thr fn. 107 The jUdgment in Deutsche Barr wvas notappealed to the Cl. See, with regard to this case, Ncivak, ludicialProtection of Comnplanants in the Scope of EC Stae Aid Law:New~ Developmrents and Question Marks, EStAL 2006, p.621.

11 3 Deutsche B Thr fn. 107 paragraph 49.

114 Athiniiki Techiki fn. -5.


EStAL 212010


Athiniki further brought an action for annulmentagainst that letter with the GC. In line withSytraval, the GC ruled that the contested letter didnot constitute a challengeable act within the mean-ing of Article 263 TFEU, 15 insofar as Article 20 Of

Regulation 659/1999 did not prov~ide for explicitrights for complainants in State aid proceedings,comparable with the ones envisaged in the contextof Articles 10o1 and 102 T1FEU, and, under Article 25

of Regulation 659,/1999, State aid decisions of theCommission were addressed to Member Statesonly'" 6. Consequently, it declared the applicationinadmissible. Athinaiki appealed this ruling.

As in JKaonofrance, described above, in his opin-ion in Athirtaiki, 1'1 Advocate General Bot suggesteda significant departure from the traditional caselawx, with a viewx to granting complainants betteraccess to justice. In his opinion, Advocate GeneralBot concluded that the letter informing a cornplainant that no further action would be taken onthe complaint had to be considered to be a chial-lengeable act within the meaning of Article 263TFLU. 118 The reasoning he relied on to reach this

conclusion was threefold.First, Advocate General Bot analysed the r elev ant

regulatory framework, in particular Article 20(2) Of

Regulation 659/1999. In that respect, hie held thatthe second sentence of Article 20(2) of Regulation659/1999 could be construed as meaning that,where the Commission considers that there areinsufficient grounds for initiating the formal inves-

'11501ider of 26 Septemnber 2006 in Case 1194,,05, thiinailechikivCommrission, not reported, paragraph 30.

V1 60Gider in Athinaiki Techniki, fn. 115, paragraphs 26 to 29

V I Opinion of Advocate General Bot in Case C-52106 P, AthiinakiTechnikiv Commission [20081 ECR 1I89

V Ib0pinion of Advocate General Bot in Athiaki Techniki, fn. I 17,paragraph 1 39.

I l9Opinion ci Advocate General Bot in Athinaiki Teciki, fn. 1 '17paragraphs 99 to 101.

1 )O0pinion 01 Advocate General Bot in Athri ki Techniki fn. 117paragraphs '105 to '107

1)] Opinion of Advocate General Bot in Athri ki Techniki In. 117paragraphs I 1I and U 6.

122 Opinion of Advocate General Bot in Athri ki Techniki In. 117paragraph 126.

12 Opinion of Advocate General Bot in Athinaiki Techniki, In. I 17paragraph 128.

I 24Opinion ci Advocate General Bot in Athinaiki Techniki, fn. 1 '17paragraph 132.

I O5pinion ci Advocate General Bot in Athinaiki Techniki, fn. 1 '17paragraph 1 36.

tigation procedure, the complainant must beallowed to prov~ide additional information. Then,under the third sentence of Article 20(2) of that reg-ulation, where the Commission takes a decision toclose the file on the complaint, it must send a copyof that decision to the complainant, the addresseeof the latter being the Member State concerned. 119

Moreover, for Advocate General Bot, other regulato-ry provisions, such as Articles 10(1) and 13(1) ofRegulation 659,/1999, tend to support the view thatthe closure of the file is an actionable decision. 120

Second, Advocate General Bot looked at the con-cept ot actionable decision in the case law. In thisregard, he referred to case law,% concerning antitrustcases and stated that the reasons advanced by thatcase lawx to justify that the decision to close the fileon a complaint is challengeable, are applicable inmatters relating to State aid. 2

Third, he reviewed the case law concerning therights enjoyed by complainants in the context ofArticle io8 TFEU. In that regard, he stated, on thebasis of Cook and Akla tra, that where theCommission decides not to raise any objectionsagainst a measure that has been the object of a com-plaint, the complainant, if it is a party concernedwithin the meaning of Article 108(2) TFEU, is enti-tied to challenge that decision in order to defend hisprocedural rights. 122 He added that the effects ofthat case law would be significantly reduced if acomplainant were not also entitled to challenge theclosure of the file on his complaint by means of anaction for annulment. 123 Advocate General Botthen added that the GC had erred in law,% when hold-ing that the non-actionable nature of that closure ofthe file cannot deprive citizens of access to EU jus-tice, in particular because the complainant couldbring an action for failure to act. 124 F-or him, the dlo-sure of the file on a complaint constitutes the defi-nition of a position which brings the procedure forexamining that complaint to a final conclusion, 12 5

which implies that no action for failure to act maybe lodged.

Two remarks may be made concerning AdvocateGeneral Bot' r ieasoning. First, Adv ocate General Botdid not tackle, or ev en mention, the statement inSytraval, purs~uant to which a letter infor ming acomplainant that no further action would be takenon the complaint had to be regarded as an informalcommunication and not as a challengeable deci-sion. This is pirobably not an oversight, in v iew ofthe fact that the CJ had specifically invited the par-


EStAL 212010


ties to express their views on the irelev ance ofSytraval for the outcome of the dispute. Rather, thiscan be interpreted as proof that Advocate GeneralBot proposed oveiturning the findings of that case.Second, it is unclear whether Advocate General Botconsidered that the closure of the file on a cornplaint w~as a decision pursuant to Article 4 OfRegulation 659/ 1999 or w~hether it was a new typeof decision, in addition to the three decisions listedin that article.

F-ollowing the opinion of Advocate General Bot,the CJ overturned the ruling of the GC and foundthe letter at issue to be an actionable act. 126 The rea-soning of the Cl is also threefold. First, it made adistinction betwxeen the actual decision of theCommission not to take any further action and theletter in dispute, which merely informed Athinaikiof that decision. In this respect, it made it clear thatAthiniki's action was not directed at the letter indispute as such but was directed at the Commis-sion's decision to take no fuithei action on its com-plaint.12

Second, it developed a theoiy as to the nature ofthe pioceduie leading to the adoption of lettersenvisaged in Article 20(2) of Regulation 659/1999,thereby granting piopei status, with its attachedrights, to complainants. In this regar d, aftei havingiecalled the diffeience between an Article 108(2)

TFEU pioceduie and an Aiticle 108(3) TFEU proce-dure, it iefeiied to Article io(i) and the first sen-tence of Article 20(2) of Regulation 659/1999,w~hich grant a person concerned the right to set inmotion the preliminary investigation procedure bycommunicating to the Commission informationconcerning allegedly unlawful aid. 12 8 For the CJ,because parties concerned have the right to be asso-ciated with this procedure in an adequate man-ner, 12 the Commission is required to allow them tosubmit additional comments within a reasonableperiod when it informs them that there are insuffi-dient grounds for taking a view on the case. 0 T1hisstatement undoubtedly constitutes an innovationsince the established rules only allow foi third par-ties' interv ention in the course of the formal inves-tigation procedure. 13 1The CJ then observed thatonce the comments have been lodged oi the iea-sontable period has expired, the Commission isunder an obligation to adopt a decision pursuant toAiticle 4(2), (3) or (4) of Regulation 659/11999. 132

Finally, the CJ m~ade it clear that it is irrelev antwhether or not an act satisfies ceitain formal

requirements, such as, foi example, the notificationto the Member State conceined. 133 It is importantto emphasise that the CJ felt the need to consolidatethis part of its reasoning by iefeiring to the factthat the EU is a community based on the rule of lawand that, consequently, the proceduial rules gov-erning actions brought before EU courts must beinterpreted in such a w~ay as to contribute to theobjective of ensuring effective judicial protection ofan individual's rights under EU law. 134

T1hird, applying this theory to the case at hand,the CJ stated that it w~as apparent from the sub-stance ot the contested act that the Commissiondecided to bring an end to the preliminary exami-nation procedure. According to the CJ, by that act,the Commission stated that the reviewx had notenabled it to establish the existence of State aid andimplicitly refused to initiate the formal investigation.' 33 Interestingly, although the refusal to initi-ate the formal investigation pioceduie was implicitin this case, the CJ iefeirred to Sytraval, which con-cerned an explicit refusal to initiate that piocedure,theireby giv ing the illusion that it was following thesolution offeied by that case, when it was actuallydeparting from it. The CJ concluded that the letterin dispute pioduced legal effects capable of affect-ing Athinaiki's interests,13 decided to set the caseaside and to refer it back to the GC.

It is worth emphasising that, although the CJ fol-lowed the opinion of Advocate General Bot in twomain respects, i e. the fact that a decision to take nofurther action on a complaint is a challengeabledecision and the creation of a real status for cornplainants, it also departed from that opinion withregard to two aspects. First, while Advocate GeneralBot refrained from referring to Sytrai al, the CJmade the choice to make its judgment appear to be

126 Athinaiki Teclik, fn. 5,paragraph 62

127 Athin,,ai Techriki tni -5, paragraph 30.

12 A thinaiki Teclik, fn. 5,pat agraphs 33 to37

12 9The CQ relied on Case C-49/05 P Feirieie \ord v. Com~mision2008] not reported, paragraph 69.

'130Athinaiki Technik, fn. 5,paragraphs 38 and 39.

131 See Commrission Code of Best Practice for the Conduct of StateAid Control ProceUires O0J 2009 C1 36, p. 13) points 33 and 34.

132 thinaiki Teclik, fn. 5,paragraph 40.

133 Athini k Techriki tni -5, paragraph 44.

1 34 Athini k Techriki tni -5, paragraph 45.

1 35 thinaiki Teclik, fn. 5,paragraph 2

13 6 Athini k Techriki tni -5, paragraph 61.


EStAL 212010


in line with Sytraval. Second, while one may won-

dei whether Advocate Geneial Bot created a newcategory of decisions, besides those envisaged atAiticle 4(2), (3) and (4) of Regulation 659/1999, theCJ made a clear choice to stick to the three types ofdecisions listed in Article 4 of that Regulation.

b. Significance of Athinaiki: real progress butremaining uncertainties as to the practicalimplications of the judgment

The Cl's judgment in Athinaiki is laudable for anumber of reasons. First, the ruling is appreciable intermsb ot access to justice. It grants complainantsgreater protection and a true status w ith its attachedrights. This is particularly important in the contextof a procedure, which although, according to thelaw, only concerns the Commission and MemberStates, in practice involv es undertakings. 137

Second, the outcome of the case seems to be par-ticularly logical in v iew of the teims of Article263(4) TFEU, which take piecedence over Regu-lation 659/1999, in particular Articles 4 and 20(2).

In this regard, it is not because the Commission'sact is not desciibed as a decision within the mean-ing of Aiticle 4 of that Regulation that the Commis-sion may avoid review by the EU judicatuie, as pie-sciibed by Article 263, fourth paragraph, TFEU. 138

Third, the reasoning of the CJ is simple and log-ical in view of the structure and the teims ofRegulation 659/11999. According to Article io( i) ofthat regulation, the Commission must examine theinformation (in the case at issue, a complaint) from

137 See in favoul of this interpretation, Derenne, La ClE I tablIit quele cIassernent d'une plarnte d~noneant I octroi ill~gal d'une add'Etat constitue un acte attaquable au rs ns de l'article 20 C1etanUle a ce titre Line ordonnance dui Tribunal qUi avait concluI irecevabilite d'un recours a l'encontie d'une de ision de classe-mrent de ai plainte, Concurrences 2008/4, p. 112 and Hdot, Droitdes plaignants et acces au pretoire Europe 2008, comm. no 37p. 29. A contrario, Clerot, Second point de VJe, Concurrences2084, p. 116.

1 38 See FiLgus Diz, Arr~t Athina~ki Techniki FA c. Commrission, Revuedu elicit de l'Union euiropeenn 2008 n" 3, p.627 at p. 630.

139 See Cheict, Second point de vuLI Concuirrences 2008,,4, p. 116.

140 See Athrin ki Techniki fn. -5. paragraphs 38 and 39. See, also,Cherot, Second point de vuLI, Conicurrences 2008/4, p. 1 16.

14] See Dererre, La CJCE etablit clue le classement d'Une plaintedeiionyant I octroi ill gal d'Line aide ci Eat constitue Liin acteattaquable aU ens de I articIe 230 CE et annUle a ce titre fLeoidonnance dlu Tribunal qui avait conCIL a I irecevabilite d'LinreCOirs I encontre d'une d~cision de classernent de Ia pIaunte,Conicurrences 2008/4, p. 112.

142 Case T- 52/06, NDSHT v. Commisi;on, not Vet reported.

whatev ei source at its disposal without delay.Pursuant to Article 13(i) of that samie iegulation,such examination of possible unlawful aid is toresult in a decision.

Nonetheless, the judgment in Athinaiki alsoleaves some questions open, in particular those con-cerning the rights granted to complainants as w~elias the practical consequences of the judgment. Inthis respect, the judgment could be viewed asaffording extraordinary powers to complainants,allowxing them to force the Commission to carry outan investigation. Until Athinaiki, a strict interpretation ot Article 1o83(3) Ti-EU led to the conclusionthat the Commission and the Member States w~erethe sole holders of the right to set the preliminaryinvestigation procedure in motion. Lodging a com-plaint did not automatically lead to the initiation ofthat procedure but seemed to open some sort ofinfoimal pie-pieliminary stage'3 9 With Athinaiki,the CJ expiessly considered that the opening of thepieliminary investigation piocedure also resultsfrom complaints lodged with the Commission onthe basis of Article 20(2) of Regulation 659/1999.Fuitheimoie, aftei Athinaiki, the Commission is

obliged to take a final decision undei Article 4 OfRegulation 659/1999.

It is unclear, howev er, how buirdensome this willbe for the Commission. It follows from the judg-ment that, if the infoirmation prov ided in the com-plaint is insufficient, the Commission will have torequest more information from the com-plainants 140 and then have to assess the additionalinformation. Furthermore, if the Commission isnow obliged to take a final decision under Article 4of Regulation 659/1999, it wxill also be under anobligation to give reasons for the decision not totake any further action on a complaint. 14

3. NDSHT one step backwards?

In its judgment in ANDSHT, 14 2 wxhich w~as delivered

on 9 June 2009, the GC took a surpiisingly differentstance fiom the CJ in Athinaiki.

NIDSIIT conceined an alleged aid granted to theStockholm Visitors Boaid, a touiism companyowned by the City of Stockholm. NDSI-IT hadlodged a complaint with the Commission regar dingthe alleged aid. H-owevei, in two letters addressed toNDSHT, the Commission made it cleai that it haddecided not to take any further action on that com-


EStAL 212010

320 1Standing in State Aid Cases: What's the State of Play? LrL~ 1

plaint since the alleged aid was existing aid, not ie-gal aid, there were no giounds to institute the pro-cedure provided toi in Aiticle 1o8( i1) i U. NDSI-Ihirought an action to the CC conceirning thoseletters.

The CC declared the action inadmissible insofaras the contested letters had to be viewxed as an infor-mal communication, as provided for in the secondsentence of Article 20(2) of Regulation 659/1999,the content of wihich did not reflect a decisionunder Article 4 of that regulation, wihich meant thatthe contested letters did not constitute actionablemeasures tor the purposes of Article 263 T1FEU. 141

In reaching this conclusion, the GC mainly reliedon the fact that the aid at issue was existing aid andnot illegal aid. More particularly, the GC's reasoningwias twiofold.

F'irst, the GC made it clear, on the basis ofDeutsche Bahn, that thle Commission was not ie-quiied to adopt a decision under Article 4 of Regu-lation 659/11999 in response to each complaint' 44

For thle CC, the obligation to adopt a decision iniesponse to a complaint aiises only in the situationenvisaged in Aiticle 13 of Regulation 659/1999. Asthat aiticle does not apply because the aid refeirredto in the complaint is not unlawful aid, bnt existingaid, Article 20(2) of Regulation 659/1999 pirovidesthat thle Commlission need only inform the com-plainant by lettei that there are insufficientgrounds for taking a v iew on the case.14

Second, the CC set out to assess the facts, of thecase in view of those principles. It started byreviewiing the content of the contested letters inorder to ascertain from their substance whetherthey may be deemed to constitute a decision underArticle 4 of Regulation 659/1999, wihose trueaddressee is the Member State concerned andwihich affects the interests of the applicant bybringing about a distinct change in its legal posi-tion. 14 6 In this regard, the CC concluded that in thecontested letters, the Comnission confined itself toinforming the applicant that it was apparent froman initial piovisional assessmnlt that thle measuresconmplainled of constituted existing aid cov ered bytile pioceduie prov ided for in Aiticle io8(t)TEEFh' 14 The CC thlen examinled whlether thle conltested letteirs, insofai as thley categorised thle mleas-ures complainled of as existing aid, could be regard-ed as aillouitiilg to a decision whlich affects thleiinterests of thle applicant by bringing about a dis-tinlct chanige inl its legal position. 148 I tllat respect,

it stated tllat thle Conmnission cotuld ilot be com-pelled, by a conmplit, to issue a reconmnidatioinpioposing appropriate mleasures to thle MemberState puisuant to Article 18 of Regulation No659/1 999.'49 it added thlat thle Conmnission Ilad todeal with measures coinstitutiing existiing aid withinthe procedural framework provided for in Article1o8(1) and (2) 'iFEU,' 15 and that the applicable pro-cedure as regards existing aid, set out in Articles 17to 19 of Regulation 659/1999, did not contemplatethe possibility of a decision addressed to the Men-ber State concerned being adopted by the Conmnis-sion at the end of the prelinminary investigationstage.' ' The CC further stated that if, following aninitial assessment, the Comnission found that theconmplaint related not to unlaw ful aid but to exist-ing aid, it wias under no obligation to address adecision under Article 4 of Regulation 659,/1999 tothle MVenmber State conlcernled.' 1, On thlis basis, thleGC concluded thlat thle conltested letteis h~ad to beregaided as an iinfoinmal comlmunlicationl, as provid-ed foi in the seconld senltenlce of Article 20(2) Of

Regulation 659/1999, thle conltenlt of which did nlotreflect a decision uinder Article 4 of that regilla-tionl! 53l

The juldgmnit of thle GC lhds attiacted ciiticismoil thle pait of a nunmber of schlolais dild lhas beenlv iewed as goinlg one step backwards iil terms of

judicial protectionl affoided to conmplainanits iilState aid piroceduires. 15 In thle conltext of thle debateinitiated by those scholars, three comnments nmay benmade.

First, it is striking that the GC, when recalling thepast case law,%, did not make any reference whatso-ever to the judgment of the C) in Athinniki but

1 43 NDSHT in. 1 42, paragraph 71.

144 NDSHT in. 142, paragraph 43.

14 5\DSHT fn. 142, paragraph 44.

146 NDSHT in. 142, paragraph 4-5.

147 NDSHT in. 1 42, paragraph -2.

I 48ND~SHT fn. 142, paragph 56

149 NDSHT in. 142, paragraph _5,7

150 NDSHT in. 1 42, paragraph -8.

151 \DSHT fn. 142, paragraph 9.

152 NDSHT in. 1 42, paragraph 60.

153 NDSHT in. 142, paragraph 70

15,4 See, inot, Tiaiiernent pincciural du plaignant, Ftope 2009,Aout-sept, comm. 320, p. 21; Derenre, Le TPI1Ct se prononce surIhtrecevabiliie des recouts teim s cnie les rejets de plaintesconcernant des aides existantes Concurrences 2009/3, F. 12-5.


EStAL 212010

L~t\L O1OStanding in State Aid Cases: What's the State of Play? 132-1

merely relied on Deutsche Bahn, which is older caselaw. As the CJ's judgment in Athinaiki was deliveredon 17 July 2oo8 and the hearing in AIDS1-1 tookplace on 1 July 2008, the GC could hav e ireopened

the oral procedure 15with a view to inviting partiesto submit theii observ ations on that case, which

w~ould have enabled it to rely thereon in its judg-ment. However, one must acknowledge that thelegal framewxork applicable in JVDSHT which con-cerned letters explicitly stating that the aid at issuew~as existing aid -differed from the one analysed inAthinaiki. It is therefore questionable whetherAthinaiki w~as applicable to the facts of A'DSHT.

Second, one must emphasise that, in Athinaiki,the Cl was determined to declare the action admis-sible and relied to this end, in particular, on the ideathat the procedural rules governing actions broughtbefore EU courts must be interpreted in such a wayas to contiibute to the attainment of the objective ofensuiring effectiv e judicial protection. In contrast,in the case at hand, the GC was in position to, anddid, set aside the argument concerning the effectivejudicial protection and stated that the applicantmay tuin to national courts. 15 It is indeed coriectthat NDSI-IT could also have taken its case to anational couit asing it to rev iew the aid measure,confirm that it was illegal, and diaw the appiopiate inferences with iegard to the validity of themeasures giving effect to the aid.

Third, while the GC chose to hold that the

Commission's decision not to take any furtheraction on a complaint concerning existing aid wasnot a challengeable decision w~ithin the meaning ofArticle 2 63(4) T1FEU, one may consider that it couldhave chosen another path. T1he letters might havebeen viewed as containing a decision wxhich con-sisted in the qualification of the measure at issue asexisting aid, as opposed to illegal aid. Such a deci-sion could be viewxed as having affected NDSHT1'sinterests inasmuch as such qualification preventedit from being able to put forward observations theCommission would have been obliged to request,pursuant to Athinaiki.

15-5 A rtic Ie 62 of the Cs ruI es of procedure.

156\DSHT fn. 142, paragraph72

157 The notice of a ppea I against CaseT 152/06, NDSHT v. Comm s-si .on, was published in 01 C 23 of 26 Seplernbe 2009, p. '12

'158 Commrission notice on the enfoi cement oi State aid law bynational Courts OJ 2009 C 85 p.1

The discussion on these points will no doubt con-tinue since the GC's judgment has beenappealed,1 5 which will give the CJ a furthei oppor-tunity to clarify its case law.

MI. Concluding Remarks

T1he case law,% of the EU judicature, throughout 2008and 2009, has been very rich with regard to theright of access to justice of parties other than aidbeneficiaries in State aid procedures. While thisperiod is too short to drawx far reaching conclusions,there is no doubt that the past twxo years w~eremarked by a tendency in favour of allowxing morechallenges brought by third parties to be effectivelyheard by the EU judiciary. On the one hand, the CJand the GC refused to further ease the access ofcompetitors to EU courts, by abolis~hing the distinc-tion in the conditions of admissibility dependingon the natuie of the pleas in law raised by thosecompetitors befoie the courts. Nonetheless, theyinteipieted the past case law so that actions lodgedby competitors are moie easily declared admissible.Foi example, in British Aggregates, the CJ con-fiirmed the applicability of the standing test set outin Cook and Matra to aid regimes, theieby settingaside the Commission's suggestion to apply astricter test. Likewise, in Krono ply, De utsche Postand Schu ucher Fleich, the GC decided to rev iewpleas concerned w~ith the merits of the contesteddecision w~ith a viewx to determining w~hether theycontained any procedural argument that could bedeclared admissible. On the other hand, inAthinctiki, the CJ agreed to facilitate complainants'access to the EU judicature.

T1he EU courts' recent endeavours to allowx betteraccess to justice for third parties in State aid proce-dures is laudable. In an area w~here the Commissionhas been conferred with exclusive and considerablepowers of appraisal as to the assessment of thecompatibility of the aid w~ith the common market,individual applicants' contributions towards thepioper application of the law cannot be undeiesti-mated. Whilst piivate enforcement of State aid lawat national level is being activ ely promoted, as wit-nessed by the recent Notice of the Commission on

the enfoicement of State aid law by nationalcourts ,8 one should also admit that it is no lessciucial at Elf level.


EStAL 212010

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2010EurStAidLQ303