T-189/97

COMITÉ D'ENTREPRISE DE LA SOCIÉTÉ FRANÇAISE DE PRODUCTION AND OTHERS v COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (Second Chamber, Extended Composition) 18 February 1998 *

In Case T-189/97,

Comité d'Entreprise de la Société Française de Production, an employees' rep- resentative body, whose registered office is in Bry-sur-Marne (France),

Syndicat National de Radiodiffusion et de Télévision CGT (SNRT-CGT), a trade union, whose registered office is in Paris,

Syndicat Unifié de Radio et de Télévision CFDT (SURT-CFDT), a trade union, whose registered office is in Paris,

represented by Hélène Masse-Dessen, lawyer with right of audience before the French Conseil d'État and Cour de Cassation, with an address for service in Luxembourg at the Chambers of Guy Thomas, 77 Boulevard de la Grande- Duchesse Charlotte,

applicants,

v

Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, and Dimitris Triantafyllou, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for the annulment of Commission Decision 97/238/EC of 2 October 1996 concerning aid granted by the French State to the audiovisual pro- duction company Société Française de Production (OJ 1997 L 95, p. 19),

Order

Facts and procedure

1 Société Française de Production (hereinafter 'SFP') is a company controlled by the French State, whose principal activity is the production and broadcasting of televi- sion programmes.

2 By decisions of 27 February 1991 and 25 March 1992 the Commission authorised two payments of aid made by the French authorities to SFP between 1986 and 1991 and amounting to a total of FF 1 260 million.

3 The State subsequently carried out further aid operations under which it granted SFP FF 460 million in 1993 and F F 400 million in 1994. Several competitors claimed to suffer from the low prices charged by SFP as a result of the aid and lodged a complaint with the Commission on 7 April 1994.

4 By decision of 16 November 1994, the Commission initiated proceedings under Article 93(2) of the E C Treaty in respect of the last two payments of aid made in 1993 and 1994 and, in Communication 95/C 80/04 (OJ 1995 C 80, p. 7), invited the French Government and interested parties to submit their comments. In addi- tion it requested the French Government to supply a restructuring plan and to undertake that no further public financing would be provided to SFP without prior authorisation. The French authorities submitted their comments by letter dated 16 January 1995.

9 By a separate document, registered at the Registry of the Court of First Instance on 30 July 1997, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure. The applicants submitted their observa- tions regarding that plea on 25 September 1997.

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Forms of order sought by the parties

10 In their application, the applicants claim that the Court should:

— annul the contested decision;

12 The Commission submits that, with regard to a decision addressed to the French Republic, the applicants are not entitled to bring proceedings, in so far as they do not fulfil the two conditions laid down in the fourth paragraph of Article 173 of the Treaty.

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13 First, they are not individually concerned by the contested decision, which con- cerns proceedings under the provisions relating to State aid which, like the other provisions in the chapter relating to the competition rules, are intended to safe- guard effective competition in the common market. It follows that it is primarily undertakings, as economic operators, which are affected by those rules and the decisions adopted pursuant to them.

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'Regulation N o 4064/89') contains an express provision granting procedural rights to the recognised representatives of the employees of the undertakings concerned led the Court of First Instance to hold that the latter are individually concerned by a Commission decision (Case T-96/92 CCE de la Société Générale des Grandes Sources and Others v Commission [1995] ECR II-1213 and Case T-12/93 CCE de Vittel and Others v Commission [1995] ECR II-1247). There are, however, no such provisions in respect of State aid. Furthermore, the structure of the system for monitoring State aid is characterised by the fact that, in their dealings with the Commission, undertakings themselves are involved only at a level below that of the Member States and decisions adopted pursuant to Articles 92 and 93 of the Treaty are formally addressed only to the latter. Since undertakings or associations of undertakings are considered by the case-law to be individually concerned by such decisions, for the purposes of Article 173 of the Treaty, only under strict con- ditions (Case 169/84 Cofaz and Others v Commission [1986] ECR 391; Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] E C R 219 and Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others v Commission [1995] E C R II-1971), there is a fortiori good reason for not accepting that third parties such as the applicants, which are not concerned from a competi- tive point of view and are therefore at one remove from undertakings, are distin- guished individually.

17 Finally, implementation of its decisions concerning State aid would be consider- ably undermined if bodies representing employees were to be recognised as having an interest in bringing proceedings. The Commission submits, in that respect, that grant of aid by the State is usually preceded by compromises between the various interests within the undertaking concerned, in particular in the case of restructur- ing. In future, it would therefore suffice for a union to challenge a Commission decision in order for the whole of the proposed plan to be suspended or even can- celled. That risk is even more apparent in a case such as this, where the employees are represented by several trade union organisations. The Commission concludes that only the undertaking as a whole, comprising human resources and capital, should be regarded as being individually concerned, in contrast to its constituent parts or their representatives.

18 Secondly, the Commission claims that the applicants are not directly concerned by the contested measure. It submits that the decision has only an indirect effect on the rights and interests of the employees represented by the applicants. In its view, even though repayment of aid found to be incompatible with the common market prevents the undertaking from obtaining funding which it had hoped to receive or had been promised, none the less that might have repercussions on the level or conditions of employment only if measures which are independent of the Com- mission's decision itself are first adopted by the undertaking or by the employers and employees. In the present case, the contested decision merely states that there is no restructuring plan at all, but does not order the adoption of specific restruc- turing measures.

21 It adds that the only interest of their own which the applicants could have relied upon related, at the very most, to their participation in the administrative pro- cedure qua parties concerned within the meaning of Article 93(2) of the Treaty, in so far as third parties to whom procedural rights are granted must have a remedy available for the protection of their legitimate interests (Case 26/76 Metro v Com- mission [1977] ECR 1875). In the present case, however, the applicants are not directly concerned, since the purpose of their action is not to protect their proce- dural rights and they did not participate in the administrative procedure.

22 The applicants note that, according to the Commission, they have the right, qua recognised representatives of the employees, to be heard during the procedure referred to in Article 93(2) of the Treaty notwithstanding the absence of any statu- tory provision.

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23 They claim that the plea of inadmissibility raised is unfounded.

24 They maintain, first, that they are individually concerned by the decision. They rely on the judgments in CCE de la Société Générale des Grandes Sources and Others v Commission and CCE de Vittel and Others v Commission and submit that they are the recognised representatives of the employees of SFP, which gives them standing to bring proceedings against the contested decision.

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27 Second, the applicants claim that the decision is of direct concern to them, in so far as it adversely affects the rights of the employees they represent. The contested decision unavoidably leads to job cuts and the loss of collective benefits for employees of SFP. In the absence of the funding intended to supplement the undertaking's capital, the possibility of redundancies or reductions in social ben- efits cannot be regarded as being purely theoretical and employers and employees have no margin for negotiation. That is all the more true as the decision directly threatens the social benefits enjoyed by employees of SFP, since one of the grounds on which the aid was held to be incompatible with the common market was that '[t]he restructuring measures referred to by the French Government... are not sufficient [in so far as] the public-sector collective wage agreement should no longer be applied since at present SFP does not have a competitive wage-cost structure'. Contrary to the Commission's assertion, it in no way follows from Article L. 132-8 of the French Code du Travail that, if notice were given to termi- nate the collective agreement, it would none the less continue to apply until the entry into force of a new agreement since, by virtue of that article, the employees' rights would then be maintained for only one year.

28 The applicants do not dispute that a State aid decision is not the only decision which may give rise to restructuring measures. They concede that such a decision may have no effect on employment. In the present case, however, the contested decision has a direct effect on the situation of the employees since, on the one hand, it makes authorisation of the aid conditional upon the adoption of a restruc- turing plan involving, inter alia, a review of the structure of posts and wages and, on the other, repayment of the aid at issue could result in the closure of the under- taking. The Commission's analogy in respect of concentrations is irrelevant, in so far as there is no statutory provision guaranteeing employees that their employ- ment will continue indefinitely or will be transferred.

32 The fourth paragraph of Article 173 of the Treaty provides that a natural or legal person may bring an action for annulment of a decision addressed to another per- son only if that decision is of direct and individual concern to the former.

33 The admissibility of the application in the present case therefore depends on whether the contested decision, addressed to the French Government and closing the procedure initiated under Article 93(2) of the Treaty, is of direct and individual concern to the applicants.

34 According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth paragraph of Article 173 of the Treaty only if the contested decision affects them by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these fac- tors distinguishes them individually just as in the case of the person addressed (see Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Cofaz and Others v Commission, cited above, paragraph 22, and Case T-398/94 Kahn Scheepvaart v Commission [1996] E C R II-477, paragraph 37).

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35 In the present case the applicants maintain that they are acting as the recognised representatives of the employees. They rely on the judgments in CCE de L· Société Générale des Grandes Sources and Others v Commission and CCE de Vittel and Others v Commission, cited above, in which the Court of First Instance held that the recognised representatives of the employees of the undertakings concerned by a concentration should, in principle, be regarded as individually concerned by the Commission's decision adopted pursuant to Regulation N o 4064/89 and declaring that concentration to be compatible with the common market.

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39 It should be recalled that Articles 92 and 93 are intended to prevent intervention by a Member State from resulting in distortion of competition in the common market.

40 N o n e the less, in order to determine whether or not an aid within the meaning of Article 92(1) of the Treaty is compatible with the common market, the Commis- sion may, where appropriate, also take into account considerations of a social nature. Under Article 92(3) of the Treaty, the possible application of which was considered in the contested decision, the Commission enjoys a wide discretion, and the exercise of that discretion involves assessments of an economic and social nature which must be made within a Community context (Case C-301/87 France v Commission (the 'Boussac' case) [1990] E C R I-307, paragraph 49, and Case C-355/95 P TWD v Commission [1997] E C R I-2549, paragraph 26).

41 Having regard to the purpose of the procedure laid down in Article 93(2) of the Treaty, which is to enable the Commission, having given the parties concerned notice to submit their comments, to be fully informed of all the facts of the case and to obtain all the requisite opinions in order to determine whether or not the aid under examination is compatible with the common market (Germany v Com- mission, cited above, paragraph 13; Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 16), it is therefore not excluded, as the Commission con- cedes, that bodies representing the employees of the undertaking in receipt of aid might, qua parties concerned within the meaning of Article 93(2) of the Treaty, submit comments to the Commission on considerations of a social nature which could be taken into account by the latter if appropriate.

44 Moreover, even supposing that the applicants had submitted comments during the administrative procedure, that fact alone could also not suffice to distinguish them individually just as in the case of the addressee of the decision. In the case of undertakings in competition with the recipient of the aid which have played an active role in the procedure initiated pursuant to Article 93(2) of the Treaty, it is also necessary for them to demonstrate that their position on the market is signifi- cantly affected by the aid to which the contested decision relates, in order to be regarded as being individually concerned, (see Cofaz and Others v Commission, cited above, paragraph 25, and Case T-149/95 Ducros v Commission [1997] ECR II-2031, paragraph 34). Similarly, trade associations which have participated actively in that procedure and group together the undertakings in the sector con- cerned are individually concerned by a decision to close the procedure initiated under Article 93(2) of the Treaty only if their position as negotiator is affected by that decision (judgments in Van der Kooy and Others v Commission, cited above, paragraphs 21 to 24, and Case C-313/90 CIRFS and Others v Commission [1993] E C R I-1125, paragraphs 28 to 30).

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45 It follows from the foregoing that, in the absence of any significant effect on a competitive position and any actual infringement of the entitlement which they might have, in their capacity as parties concerned within the meaning of Article 93(2) of the Treaty, to submit their comments during the procedure before the Commission, in which they did not, however, take part, the applicants cannot claim any prejudice such as to demonstrate that their legal position is significantly affected by the contested decision. They cannot therefore be regarded as being individually concerned for the purposes of the fourth paragraph of Article 173 of the Treaty.

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if the latter was not replaced by a new agreement within the time-limits laid down by the law. It follows that it is no way inevitable that the social benefits enjoyed by employees of SFP will in fact cease to be applied and that cannot, therefore, be a direct result of the contested decision. Furthermore, the mere fact that a measure may exercise an influence on the applicants' substantive position cannot suffice to allow them to be regarded as directly concerned (Joined Cases 10/68 and 18/68 Eridania and Others v Commission [1969] E C R 459, paragraph 7).

49 Furthermore, as the applicants accept, at least implicitly, the annulment of the Commission's decision in so far as it declares the aid granted to SFP to be incom- patible with the common market and requires it to be recovered by the French Government would not constitute a safeguard against the loss of jobs and reduc- tions in social benefits, which demonstrates the independent nature of the mea- sures which could be adopted by the undertaking or the employers and employees to that effect and therefore the absence of any direct causal link between the alleged harm to the employees' interests and the contested decision (see judgments in CCE de la Société Générale des Grandes Sources and Others v Commission, cited above, paragraph 42, and CCE de Vittel and Others v Commission, cited above, paragraph 55).

so The analysis according to which the possible authorisation of the payment of the aid at issue to SFP would, in any event, have only an indirect effect on the employ- ees' position is confirmed by the case-law of the Court, according to which a trade union has only an indirect and remote interest in the payment of compensation to undertakings, even if the payments in question could have a favourable impact on the economic well-being of those undertakings and consequently on the number of persons employed by them (order in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle Erling and Others v Council and Commission [1981] E C R 1041, paragraphs 8 and 9, and CCE de Vittel and Others v Commission, cited above, paragraph 52).

Costs

55 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleading. Since the applicants have been unsuccessful, they must, having regard to the form of order sought by the Commission, be ordered to pay the costs.

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O n those grounds,

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

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