T-86/96

JUDGMENT OF 11. 2. 1999 — CASE T-86/96

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Fifth Chamber, Extended Composition) 11 February 1999 *

In Case T-86/96,

Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen, an association consti- tuted under German law, having its headquarters in Bonn and comprising the fol- lowing members:

— Aero Lloyd Flugreisen GmbH&Co. Luftverkehrs-KG, a company incorpo- rated under German law, having its registered office in Oberursel (Germany),

— Air Berlin GmbH&Co. Luftverkehrs KG, a company incorporated under German law, having its registered office in Berlin,

ARBEITSGEMEINSCHAFT DEUTSCHER LUFTFAHRT-UNTERNEHMEN AND HAPAG-LLOYD v COMMISSION

and

Hapag-Lloyd Fluggesellschaft mbH, a company incorporated under German law, having its registered office in Langenhagen, acting on its own behalf,

represented by Gerrit Schohe, Rechtsanwalt, Hamburg, with an address for service in Luxembourg at the Chambers of Marc Baden, 34b Rue Philippe II,

applicants,

v

composed of: J. D. Cooke, President, R. García-Valdecasas, P. Lindh, J. Pirrung and M. Vilaras, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 29 October 1998,

gives the following

Judgment

Facts

5 By letter of 8 September 1993 the German Government informed the Commission that it intended to extend Paragraph 82f of the EStDV from 1 January 1995 to 31 December 1999. This extension was implemented on 13 September 1993 by the Standortsicherungsgesetz (Law for the Improvement of Conditions of Taxation for ensuring that Germany retains its Position, in the Internal European Market, as a Location for Undertakings; Bundesgesetzblatt I, p. 1569). However, its entry into force was made expressly conditional on prior authorisation by the Commission (Article 20(2) of the Standortsicherungsgesetz).

6 The Commission took the view that the German Government's letter of 8 Septem- ber 1993 constituted notification of new aid under Article 93(3) of the Treaty and registered it as such under number N 640/93.

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7 O n 8 December 1993 the Commission decided to initiate the procedure provided for in Article 93(2) of the Treaty in the two cases E 4/93 and N 640/93. By a com- munication published in the Official Journal of the European Communities of 19 January 1994, it gave formal notice to the other Member States and any inter- ested third parties to submit comments they might have on the measures in ques- tion (OJ 1994 C 16, p. 3).

8 O n 29 November 1995 the Commission adopted Decision C (95) 3319 final con- cerning fiscal aid given to German companies in the form of a depreciation facility ('Decision C 3319'). In essence, that decision prohibited Germany from extending Paragraph 82f of the EStDV from 1 January 1995 to 31 December 1999.

12 The operative part is drafted as follows:

'Article 1

The extension from 1 January 1995 to 31 December 1999 of the provisions of [Paragraph] 82f of ... [the EStDV] establishing a special depreciation facility for aircraft constitutes State aid which is incompatible with the common market within the meaning of Article 92 of the EC Treaty and Article 61 of the EEA Agreement.

Article 2

Germany is hereby called upon to discontinue the aid measure referred to in Article 1 as from 1 January 1995.

Article 4

This Decision is addressed to the Federal Republic of Germany.'

13 By order of 14 March 1997 in Case T-25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] E C R II-363, the Court ruled that, following the adoption of the contested decision, the action brought against Decision C 3319 had become devoid of purpose and that there was therefore no longer any need for the case to proceed to judgment.

Procedure and forms of order sought by the parties

1 4 The applicants brought the present action by application lodged at the Court Reg- istry on 31 May 1996.

15 By a separate document lodged on 16 September 1996, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure. The applicants submitted their observations on that objection on 15 November 1996.

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— declare the action admissible;

— annul the contested decision in so far as it relates to the extension of Paragraph 82f of the EStDV from 1 January 1995 to 31 December 1999;

— order the Commission to pay the costs.

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21 The Commission submits that the Court should:

23 It points out that in its judgment in Case T-398/94 Kahn Scheepvaart v Commis- sion [1996] E C R II-477, at paragraph 39, the Court ruled that Paragraph 82f of the EStDV was a tax provision of general application. It submits that the contested decision relates precisely to that provision. Consequently, it is a measure of general application which cannot, as such, be of individual concern to persons other than the party to which it was addressed, that is to say, Germany.

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24 Moreover, according to the Commission, the applicants are not affected by reason of attributes which are peculiar to them or by reason of circumstances which dis- tinguish them from all other persons (Case 25/62 Plaumann v Commission [1963] E C R 95, at p. 107).

25 According to the applicants, the locus standi of the applicant association Arbeits- gemeinschaft Deutscher Luftfahrt-Unternehmen ('ADL') must be distinguished from that of the applicant undertaking Hapag-Lloyd Fluggesellschaft m b H ('HLF').

26 With regard to ADL, the fact that the contested decision is a measure of general application is irrelevant. An action brought by an association concerning State aid is admissible only if its position as the Commission's interlocutor is affected by the contested decision (Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] E C R 219 and Case C-313/90 CIRFS and Others v Commis- sion [1993] E C R I-1125).

— its active participation in that procedure through the lodging of written obser- vations on 18 February and 19 March 1994; the lodging of an expert report drawn up in March 1994 by the Price Waterhouse firm; its attendance, on 30 March 1995, at a meeting on the preliminary expert report drawn up in Feb- ruary 1995 by the Jet Finance company; and the maintenance of informal con- tacts with the Directorate-General for Transport and with the Commission Member responsible for transport;

— its status as a privileged interlocutor of the German Government and, in par- ticular, the Ministry of Transport: A D L thus attended several meetings at which, in the presence of representatives of the various competent federal min- istries, it intervened in favour of an extension of Paragraph 82f of the EStDV (see the documents submitted as Annex K 14 to the observations on the objec- tion of inadmissibility).

28 The applicants further contend that trade associations have a privileged role in the procedure provided for under Article 93(2) of the Treaty. They are in a better posi- tion than their members to put their sector's case to the Commission (Opinion of Advocate General Sir Gordon Slynn in Wan der Kooy and Others v Commission, cited above, at p . 246). Consequently, if, at the end of that procedure, the Com- mission adopts an unfavourable decision, the privileged role of those associations ought to make it possible for them to bring an action against that decision.

29 It follows from these factors, they submit, that the position of A D L , in its capacity as the Commission's interlocutor, is affected by the contested decision. In their view, its action is therefore admissible.

34 First, Paragraph 82f of the EStDV applies directly to it, without any implementing measure being required at national level. The possibility of using the special depre- ciation treatment provided for by that provision is therefore for it a direct, uncon- ditional and individual advantage. The contested decision had the effect of depriv- ing it of that advantage from 1 January 1995. Consequently, that decision is, in relation to HLF, akin to a measure having individual application. In its capacity as beneficiary of the measure prohibited by the contested decision, H L F is therefore entitled to bring an action even if that decision is addressed to Germany (Philip

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Morris v Commission, cited above, paragraph 5, and Case C-188/92 TWD Textil- werke Deggendorf [1994] E C R I-833, paragraph 14).

37 In this regard, H L F cannot be criticised for not being at the origin of the com- plaint which led to the opening of the procedure (Cofaz and Others v Commis- sion, cited above, paragraphs 24 and 26). As a beneficiary of the depreciation facil- ity provided for under Paragraph 82f of the EStDV, it intervened in favour of the

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ARBEITSGEMEINSCHAFT DEUTSCHER LUFTFAHRT-UNTERNEHMEN AND HAPAG-LLOYD v COMMISSION

extension of that provision, and not against it. Similarly, it cannot be required to demonstrate that its market position was significantly affected by the contested decision (Cofaz and Others v Commission, cited above, paragraph 25). That crite- rion is of relevance only in determining whether an action brought by a competi- tor of the undertaking which benefited from the contested aid is admissible (Opin- ion of Advocate General Verloren van Themaat in Cofaz and Others v Commission, cited above, at p. 406).

38 Fourth, HLF's judicial protection depends exclusively on whether the present action is admissible. Both Paragraph 82f of the EStDV and the contested decision are directly applicable to it. Since no implementing measure is required at national level, H L F cannot bring an action before a German court and thus obtain a deter- mination as to whether the contested decision is valid by means of a reference to the Court of Justice for a preliminary ruling under Article 177 of the Treaty (Case T-330/94 Salt Union v Commission [1996] E C R II-1475, paragraph 39, and Case T-298/94 Roquette Frères v Council [1996] ECR II-1531, paragraph 45).

41 Whether the action brought by H L F is admissible depends therefore on whether the contested decision, which is addressed to Germany, is of direct and individual concern to HLF.

42 It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth para- graph of Article 173 of the Treaty only if the decision affects them by reason of certain attributes peculiar to them or by reason of factual circumstances in which they are distinguished from all other persons, and by virtue of those factors dis- tinguishes them individually in the same way as the person addressed (PUumann v Commission, cited above, at p. 107, order in Case T-585/93 Greenpeace and Others v Commission [1995] E C R II-2205, paragraph 48, upheld by the judgment of the Court of Justice in Case C-321/95 P Greenpeace Council and Others v Commis- sion [1998] ECR I-1651, paragraphs 27 and 28, Joined Cases T-481/93 and T-484/93 Vereniging van Exporteurs in Levende Varkens and Others v Commis- sion [1995] ECR II-2941, paragraph 51, and Kahn Scheepvaart v Commission, cited above, paragraph 37).

43 In the present case, in prohibiting the extension of Paragraph 82f of the EStDV from 1 January 1995 to 31 December 1999, the contested decision affects the posi- tion of any natural or legal person acquiring a new aircraft registered in Germany and used commercially for the international transport of goods or persons or for other service activities performed outside Germany. Those persons include, in par- ticular, airline companies, operators who purchase aircraft for the purpose of leas- ing them out, and those who offer individualised air-transport services.

48 In the procedure laid down by Article 93 of the Treaty, the preliminary stage for reviewing aid under Article 93(3), which is intended merely to allow the Commis- sion to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 93(2) (Case C-367/95 P Commission v Sytraval and Brink's France [1998] E C R I-1719, para- graph 38). That stage of the examination is designed to provide those concerned with the guarantee of putting their case and to enable the Commission to be fully informed of all the facts of the case (Case 70/72 Commission v Germany [1973] ECR 813, paragraph 1 9Case 84/82 Germany v Commission [1984] E C R 1451, paragraph 13, Commission v Sytraval and Brink's France, cited above, paragraph 38, and Joined Cases T-126/96 and T-127/96 BFM and EFIM v Commission [1998] ECR II-3437, paragraph 45). It is for this reason that only Article 93(2) of the

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Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (Germany v Commission, cited above, paragraph 13, Cook v Commission, cited above, paragraph 22, Matra v Commission, cited above, paragraph 16, and Case T-188/95 Waterleiding Maatschappij v Commission [1998] E C R II-3713, paragraph 52).

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ARBEITSGEMEINSCHAFT DEUTSCHER LUFTFAHRT-UNTERNEHMEN AND HAPAG-LLOYD v COMMISSION

52 Finally, even the point made by H L F to the effect that German national law might not provide any remedy cannot constitute a ground for the Court to exceed the limits of its jurisdiction as set by the fourth paragraph of Article 173 of the Treaty (orders in Case C-10/95 P Asocarne v Council [1995] E C R I-4149, paragraph 26, and in Case C-87/95 P CNPAAP v Council [1996] E C R I-2003, paragraph 38, and Kahn Scheepvaart v Commission, cited above, paragraph 50).

53 It follows that H L F has failed to establish attributes peculiar to it or that it is in a special situation, apart from its participation in the procedure provided for by Article 93(2) of the Treaty, which distinguishes it from any other potential benefi- ciary of the depreciation treatment introduced by Paragraph 82f of the EStDV.

54 In those circumstances, the action must be declared inadmissible in so far as it con- cerns HLF, and it is not necessary to examine whether it is directly concerned by the contested decision.

Locus standi of A D L

58 It is thus necessary to examine whether it can justify its locus standi by virtue of special circumstances.

59 Referring to the judgments in Van der Kooy and Others v Commission and CIRFS and Others v Commission, cited above, A D L submits that it has specific locus standi because its position as Commission interlocutor is affected by the contested decision. In support of that argument, it points out that (i) it is the representative of the sector in question; (ii) it is an interested party; (iii) it has a mandate con- ferred by its members to protect their interests in the procedure under Article 93(2) of the Treaty; (iv) it actively participated in that procedure; and (v) it is the privileged interlocutor of the German Government.

60 The first four points simply show that A D L intervened with the Commission for the purpose of defending the collective interests of its members. They cannot therefore establish that A D L has specific locus standi in its own right to bring an action against the contested decision.

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ARBEITSGEMEINSCHAFT DEUTSCHER LUFTFAHRT-UNTERNEHMEN AND HAPAG-LLOYD v COMMISSION

61 So far as its status as interlocutor of the German Government is concerned, it is clear from the documents submitted in Annex K 14 that A D L was requested by the Ministry of Transport to attend three meetings in order to exchange informa- tion and to define, with the other participants, a common course of conduct vis- à-vis the Commission. Attendance at such meetings cannot confer on A D L the status of negotiator within the meaning of the judgments in Van der Kooy and Others v Commission and CIRFS and Others v Commission, cited above.

JUDGMENT OF 11. 2. 1999 — CASE T-86/96

Costs

67 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission.

O n those grounds,

T H E C O U R T O F FIRST I N S T A N C E (Fifth Chamber, Extended Composition),

hereby:

Registrar President

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