OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 16 October 1985 ( *1 )

Mr President,

Members of the Court,

I — Introduction

In this case, the Court is confronted for the first time with the important question, debated in legal literature and contested in these proceedings, of the extent to which the ‘parties concerned’ within the meaning of Article 93 (2) of the EEC Treaty are entitled to challenge a Commission decision terminating a procedure, as referred to in that provision, on the ground that the Commission's initial objections to the aid in question have been met to its satisfaction. The scope of the question, couched in those terms, is of course fairly broad. The answer to be given may also have important consequences with regard to supervision aimed at ensuring compliance with Article 92 of the EEC Treaty, which transcend its significance for this particular case. However, the question also exhibits certain specific features which may differ from one case to another. The difficulties which in this case complicate the answer to the question concerning the admissibility of the application submitted call in any event for an exact understanding of the main facts of the case.

I will therefore begin by incorporating in my Opinion a summary of the facts of the case and of the course of the procedure taken from the Report for the Hearing (part II of this Opinion). That summary of the most important facts is in my view also sufficient to permit separate consideration of the doubts which were expressed by the Commission concerning the admissibility of the application and which induced the Court to decide of its own motion to examine the question of admissibility separately.

Next, I shall express my views on the question in general, having regard to the arguments put forward by the parties during the written and oral procedure (part III of this Opinion). I shall then deal with certain specific aspects of this case which have been referred to by the Commission (part IV of this Opinion).

Finally, I shall summarize my findings and draw my conclusions (part V of this Opinion).

II — Facts and course of the procedure

1.

On 1 June 1983 the Syndicat professionnel de l'industrie des engrais azotés [Trade Association of Producers of Nitrate Fertilizers, hereinafter referred to as ‘the Syndicat’], Paris, whose object is to study and defend the general interests of French manufacturers of nitrate fertilizers, including Cofaz, SA and SCGP SA, submitted a complaint to the Commission against the preferential tariff for the supply of natural gas intended for the manufacture of ammonia, which is accorded in the Netherlands to domestic producers of nitrate fertilizers.

The Belgian and French Governments, together with a German undertaking, also raised objections to the preferential tariff applied by the Netherlands.

2.

After considering those complaints and taking note of the observations submitted by the Netherlands Government, the Commission decided on 25 October 1983 to initiate the procedure under Article 93 (2) of the EEC Treaty. It gave notice of that decision in the Official Journal of the European Communities of 1 December 1983 (C 327, p. 3) and invited the parties concerned other than the Member States to submit their comments within three weeks. In that notice the Commission also explained that the aid scheme in question was a system whereby the Netherlands Government granted special rebates through Gasunie [the Gas Board] by means of a two-tier tariff structure which had the effect of reducing the cost of natural gas used as a feedstock for Netherlands producers of ammonia. The Commission considered that that tariff structure constituted a State aid within the meaning of Article 92 (1) of the EEC Treaty and could not benefit from any of the derogations foreseen in Article 92 (3).

The Syndicat availed itself of the possibility offered in the abovementioned notice, again made representations to the Commission in a letter dated 6 January 1984 and in its observations confirmed its complaint of 1 June 1983 and provided further particulars thereof.

3.

At the same time, the Commission, acting on a complaint from the French Government dated 11 July 1983, initiated the procedure under Article 170 of the EEC Treaty and by letter of 4 November 1983 requested the Netherlands Government to submit its observations.

4.

On 13 March 1984 the Commission delivered pursuant to Article 170 of the EEC Treaty a reasoned opinion addressed to the French and Netherlands Governments concerning the preferential tariff for the supply of natural gas to Netherlands producers of nitrate fertilizers. In its reasoned opinion, the Commission found that, by granting through Gasunie a preferential tariff for the supply of natural gas to Netherlands producers of ammonia and of nitrate fertilizers, the Kingdom of the Netherlands had failed to fulfil its obligations under Article 93 of the EEC Treaty. Moreover, the Commission reserved its position with regard to the attitude which it would adopt in connection with the procedure under Article 93 (2) of the EEC Treaty.

5.

Pending the adoption by the Commission of its final decision in the procedure under Article 93, the Syndicat sent a memorandum on 28 March 1984 to the French Members of the Commission. In that memorandum, the Syndicat set out its objections to the system of natural gas tariffs which had in the meantime been amended by Gasunie. The Syndicat pointed out in particular that the second system really amounted to an attempt to maintain, in a different guise, the preferential tariff against which the complaint of 1 June 1983 was directed.

6.

By telex message of 14 April 1984 the Netherlands Government informed the Commission that Gasunie had, with effect from 1 November 1983, abolished the two-tier preferential tariff applied to producers of ammonia and of nitrate fertilizers — that is to say the system which the Syndicat had challenged in its complaint and the second system to which the Syndicat had objected in its memorandum of 28 March 1984 — and had added to its industrial tariff system, with retroactive effect from 1 November 1983, a new tariff known as tariff F for the benefit of the major industrial users in the Netherlands, with the exception of those in the energy section, which applies to any user that:

(i)

consumes at least 600 million cubic metres of gas per year and operates 90% of the time or more;

(ii)

accepts a total or partial interruption of supplies at the discretion of Gasunie and at short notice;

(iii)

accepts supplies of natural gas having different calorific values.

Undertakings which accept those conditions pay a new tariff, known as tariff E, with a discount of HFL 0.05 per cubic metre.

7.

At its meeting on 17 April 1984 the Commission decided to terminate the procedure initiated against the Netherlands Government under Anicie 93 (2) of the EEC Treaty concerning the tariff for natural gas supplied to Netherlands producers of ammonia and of nitrate fertilizers on the ground that the new tariff, tariff F, was compatible with the Common Market. The Commission notified the Netherlands Government of its decision by letter of 18 May 1984. It also informed the Syndicat of its decision by letter of 24 April 1984. In that letter, the Commission stated that it had come to the conclusion that the new tariff which, in its view, formed part of the general tariff structure for users in the Netherlands and which did not discriminate between sectors, could in no way be regarded as a State aid. Large savings were made by Gasunie on account of the long operating hours and the conditions on which major industrial users may be supplied. Since the present level of charges under tariff F did not cover the total value of the savings which Gasunie made on supplies by means of those contracts, tariff F was justified in economic and commercial terms by comparison with the prices charged to other large-scale users.

8.

After considering the Commission's letter, the Syndicat replied on 22 May 1984 setting out its objections to the conclusions drawn by the Commission and requesting further clarification. By letters of 26 and 27 June 1984, the Commission provided further particulars and refuted the Syndicat's objections.

9.

Course of the procedure

On 2 July 1984 the applicants lodged an application in which they claim that the Court should:

(a)

declare the decision of the Commission of the European Communities notified to the applicants by letter of 24 April 1984 void, inasmuch as it constitutes an infringement of Articles 92 and 93 (2) of the EEC Treaty;

(b)

order the Commission of the European Communities to pay the costs, evidence of which will be furnished in due course.

In its defence, lodged on 9 August 1984, the Commission contends that the Court should:

(i)

declare the application inadmissible;

(ii)

in the alternative, declare the application unfounded;

(iii)

order the applicants to pay the costs.

The Commission takes the view that its decision to terminate the procedure under Article 93 (2) of the EEC Treaty is not of direct and individual concern to the applicants, with the result that the requirement prescribed by the second paragraph of Article 173 of the EEC Treaty, which any natural or legal person must fulfil in order to be able to bring an action for a declaration of invalidity, has not been satisfied.

The applicants however consider that the contested decision is of direct and individual concern to them.

Under Article 92 (2) of the Rules of Procedure, the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure concerning the objection of inadmissibility without any preparatory enquiry.

III — General question of admissibility of applications submitted by the parties concerned against termination of proceedings under Article 93 (2) of the EEC Treaty

1. The Commission's position

1.1. Decision not of individual concern to the applicants

The Commission, which does not in fact deny that the conduct complained of constitutes a decision which may be challenged by proceedings under Article 173 of the EEC Treaty, considers in the first place with regard to the admissibility of the present application that, according to Article 189, the decision concerns in principle only those to whom it is addressed and that no other person may institute proceedings. The possibility which the second paragraph of Article 173 makes available to third parties is therefore not so much an exception in favour of persons other than those to whom a decision is addressed as the assimilation of certain third parties to the persons to whom the decision is expressly addressed. Such assimilation must be interpreted restrictively. The mere fact that the person concerned is ‘injured’ by a decision is insufficient in that regard.

(a)

According to the Commission, the Court has consistently held (see the judgment of 15 July 1963 in Case 25/62 Plaumann v Commission [1963] ECR 95), that persons other than those to whom a decision is addressed must point to certain attributes which are peculiar to them, which differentiate them from all other persons and which therefore distinguish them individually as in the case of the addressee. As far as the applicants are concerned, that is by no means apparent from the fact that they were treated in a discriminatory manner as a result of the tariff applied by Gasunie before the introduction of the tariff system at issue in these proceedings. Nor can the fact of being ammonia producers distinguish the applicants from all other persons, since tariff F no longer applies exclusively to ammonia producers.

(b)

In any event, the Commission takes the view that, even if they were actually and manifestly discriminated against, undertakings placed at a disadvantage by the grant of aid to third parties are not adversely affected as regards their rights in relation to the Commission if the latter has wrongly concluded that no aid is involved. Articles 92 and 93 do not confer a right on individuals to compel the Commission to take action. In connection with the application of those articles, individuals have merely a procedural right, namely the right to be notified and to submit their comments before the Commission adopts a decision finding that there is no aid incompatible with the common market. If, however, the Commission decides that no aid is being granted or that the aid granted is compatible with the common market, that does not affect the legal position of the individuals concerned, whether they are the recipients of the aid or competitors of those recipients.

(c)

The Commission considers that the involvement of the parties in the initiation and the course of the procedure under Article 93 (2) does not distinguish them to a sufficient extent to enable them to be assimilated to an addressee of a decision, as referred to by the Court in the Plaumann judgment. The objective situation created where a decision is of individual concern cannot arise from the mere fact that the applicants intervened on their own initiative and for their own particular reasons in a given stage of the administrative procedure. The procedure under Article 93 (2) was initiated by the Commission and the sole purpose of the contacts with the applicants was to enable the Commission to obtain further information. The fact that the applicants were notified of the contested decision must be viewed in the same perspective.

(d)

According to the Commission, the applicants' position during the administrative procedure cannot be compared with that contemplated by Article 3 (2) of Regulation No 17 of the Council of 6 February 1962 (Official Journal, English Special Edition 1959-62, p. 87). Even if the applicants had a right to request the Commission to bring to an end the infringement consisting in the application of a two-tier preferential tariff in favour of Netherlands ammonia producers, which is by no means certain, that would not in itself demonstrate that they had an interest in challenging the decision of the Commission which considers that the level of tariff F does not exhibit any of the features of a State aid.

(e)

According to the Commission, the applicants are confusing two concepts: in the first place the compatibility or incompatibility of an aid with the common market, within the meaning of Article 92 of the EEC Treaty, which is exclusively a matter for the Commission subject to review by the Court; and, secondly, the illegality of aid which has not been notified contrary to Article 93 (3). Since the Court has recognized the direct effect of Article 93 (3), inasmuch as it establishes procedural criteria which the national courts can apply (see the judgments of 19 June 1973 in Case 77/72 Capolongo v Maya [1973] ECR 611, and of 11 December 1973 in Case 120/73 Lorenz v Germany [1973] ECR 1471) and confers rights on individuals which the national courts must protect, it cannot be argued that in those circumstances an undertaking which has been adversely affected has no redress whatsoever.

(f)

Finally, the Commission refers to the judgment of the Court of 17 September 1980 in Case 730/79 (Philip Morris v Commission [1980] ECR 2671) and infers that, as far as this case is concerned, the contested decision is not of individual concern to the applicants. Although a decision addressed to a Member State which declares an aid intended for a specified undertaking to be incompatible with the common market is evidently of individual concern to that undertaking, the applicants' position in these proceedings cannot be compared with that of the undertaking involved in Case 730/79.

(g)

At the hearing, the Commission has amplified its position as set out in the rejoinder and stated that the fact that the applicants had submitted a complaint against the aid in the form originally granted by the Netherlands is not sufficient to distinguish them individually. Moreover, the fact that the complaint induced the Commission to initiate the procedure under Article 93 (2) of the EEC Treaty is, in the Commission's view, insufficient in that regard. Unlike the rules for the application of Articles 85 and 86 and the regulations implementing the GATT Codes on dumping and foreign aid, neither Articles 92 to 94 nor any provision implementing those articles confers any specific status on applicants. It is clear from the judgments in Case 26/76 (Metro v Commission [1977] ECR 1875, in particular paragraph 13 of the decision), Case 210/81 (Demo-Studio Schmidt v Commission [1983] ECR 3045), Case 191/82 (Fediol v Commission [1983] ECR 2913), Case 730/79 (Philip Morris v Commission [1980] ECR 2671) and from the judgment of 20 March 1985 in Case 264/82 (Timex Corporation v Council and Commission [1985] ECR 849, paragraph 11 of the decision) that the question whether a measure is of individual (and direct) concern to an applicant in cases of distortion of competition has always been answered by the Court on the basis of the specific procedural rights conferred on applicants by the relevant implementing provisions. In the absence of such implementing provisions the criteria of admissibility laid down by the Court in the Plaumann judgment are applicable. It is clear from paragraph 17 of the judgment of 14 November 1984 in Case 323/82 (Intermills v Commission [1984] ECR 3809) and from paragraph 16 of the judgment of 30 January 1985 in Case 290/83 (Commission v France [1985] ECR 439) that in the Court's view Article 93 (2) of the EEC Treaty merely ensures that the other Member States and all the parties concerned have an opportunity to express their views thereby providing the Commission with all the information which it needs on a case before making its decision. A procedural guarantee of the right to be heard or to put forward arguments during the inquiry conducted under Article 93 (2) is something quite different from a specific individual right of an applicant which was recognized by the Court for instance in paragraph 15 of the Timex judgment, an antidumping case, on the basis of specific provisions of the antidumping regulation concerned. The position adopted by the applicants in their reply, namely that the absence of specific provisions of that kind in the field of internal aid does not prevent their application from being admissible, is, in the light of the abovementioned decisions, suprising to say the least. Finally the Commission finds support for its view that the Court also considers that the absence of implementing provisions based on Article 94 of the Treaty gives rise to legal consequences in paragraph 15 of the judgment of 23 March 1977 in Case 78/76 (Steinike und Weinlig v Germany [1977] ECR 595). It was also emphasized in that judgment, and in the judgment of the same date in Case 74/76 (Iannelli and Volpi v Meroni [1977] ECR 557), that the Commission had a discretion with regard to the application of Article 92, from which the Court inferred that Article 92 did not have direct effect. As a result of that discretion, moreover, the Commission alone is responsible for initiating the procedure under Article 93 (2) of the EEC Treaty and the applicants cannot claim any rights in that regard.

The statement set out in the rejoinder and repeated four times at the hearing to the effect that the Commission by no means rules out the possibility that those who fulfil the conditions of Article 173 of the Treaty, as interpreted by the Court, can institute proceedings could not be substantiated, in response to a question on my part at the hearing, by any concrete or hypothetical examples. The Commission pointed out at the hearing, in reply to another question from the Court, that in circumstances such as those of the present case legal protection could alternatively be provided by the national courts. In addition to the possibility referred to in the pleadings of legal protection under national law in the event of a breach of the duty of notification laid down by Article 93, the Commission mentioned at the hearing the possibility of bringing an action for damages against the Member State concerned. In national proceedings of that kind the national court could of course refer questions to the Court of Justice concerning