British Aggregates Association v Commission of the European Communities and United Kingdom.

• Jurisdiction: European Union
• Celex Number: 62006CJ0487
• ECLI: ECLI:EU:C:2008:757
• Docket Number: C-487/06
• Date: 22 December 2008
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de casación - infundado

Case C-487/06 P

British Aggregates Association

v

Commission of the European Communities

(Appeal – State aid – Environmental levy on aggregates in the United Kingdom)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Arts 88(2) and (3) EC and 230, fourth para., EC)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Arts 88 EC and 230, fourth para., EC)

3. State aid – Concept – Selective nature of the measure – Environmental levy on the marketing of aggregates

(Art. 87(1) EC)

4. State aid – Concept – Legal nature – Interpretation on the basis of objective factors – Judicial review

(Art. 87(1) EC)

5. Appeals – Pleas in law – Mere repetition of the pleas and arguments submitted to the Court of First Instance – Inadmissible – Challenge to the interpretation or application of Community law by the Court of First Instance – Admissible

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

6. Actions for annulment – Jurisdiction of the Community Courts – Interpretation of the reasoning of an administrative measure – Limits

(Arts 230 EC and 231 EC)

1. In the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission 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 88(2) EC. It is only in connection with the latter examination, which is designed to enable the Commission to be fully informed of all the facts of the case, that the Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments.

Where, without initiating the formal investigation procedure under Article 88(2) EC, the Commission finds, by way of a decision taken on the basis of Article 88(3) EC, that aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision before the Community Courts. For those reasons, an action seeking the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC will be declared admissible where that person seeks, by bringing that action, to safeguard the procedural rights available to him under the latter provision. Persons concerned within the meaning of Article 88(2) EC, who may therefore institute proceedings for annulment pursuant to the fourth paragraph of Article 230 EC, are any persons, undertakings or associations whose interests might be affected by the granting of aid, that is to say, in particular undertakings in competition with the recipients of that aid and trade associations.

On the other hand, if an applicant calls into question the merits of the decision appraising the aid as such, the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 88(2) EC cannot suffice for the action to be treated as being admissible. It must then demonstrate that, irrespective of the nature, whether individual or general, of the aid measure, it enjoys a particular status, that is to say, the decision affects it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and by virtue of those factors distinguishes it individually just as in the case of the person to whom such a decision is addressed. That will, inter alia, be the case where the applicant’s market position is substantially affected by the aid which is the subject of the contested decision. The fact that a measure is general in scope inasmuch as it applies to the traders concerned in general does not prevent it from being of individual concern to some of them.

An action brought by an association of undertakings acting in place of one or more of its members who could themselves have brought an admissible action challenging the soundness of a Commission decision not to raise objections at the conclusion of the preliminary investigation procedure against a State measure, in the case where that measure is liable to affect substantially the position of at least one of its members on the market, will itself be admissible.

(see paras 26-30, 32, 33, 35, 39, 55)

2. The mere fact that a Commission decision declaring aid to be compatible with the common market may influence the competitive relationships existing on the relevant market and that an undertaking is in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure. An undertaking cannot for that reason rely solely on its status as a competitor of the undertaking in receipt of aid but must also show that its circumstances distinguish it in a similar way to the recipient undertaking.

In this regard, the grant of aid may have an adverse effect on the competitive situation of an operator, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case had it not been for such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s market position cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance.

(see paras 47, 48, 53)

3. In order to determine whether a State measure is selective, it is appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings over others which are in a comparable legal and factual situation. However, the concept of State aid does not cover measures which differentiate between undertakings in regard to charges where that differentiation arises from the nature or the overall structure of the system of charges in question. Furthermore, the objective pursued by State measures is not sufficient to exclude those measures outright from classification as ‘aid’ for the purposes of Article 87 EC. Article 87(1) EC does not distinguish between the causes or the objectives of State aid measures, but defines them according to their effects.

Consequently, the Court of First Instance fails to have regard for that provision if it holds that Member States are free, when balancing the various interests involved, to set their priorities as regards the protection of the environment and, as a result, to determine which goods or services they decide to make subject to an environmental levy, with the result that the fact that such a levy does not apply to all similar activities which have a comparable impact on the environment does not mean that similar activities, which are not subject to the levy, benefit from a selective advantage. Such an approach, which is based solely on a regard for the environmental objective being pursued, excludes a priori the possibility that the non-imposition of the charge on traders in comparable situations might, in the light of the objective being pursued, constitute a selective advantage, independently of the effects of the fiscal measure in question.

Although protection of the environment constitutes one of the essential objectives of the Community, the need to take account of requirements relating to such protection cannot justify the exclusion of selective measures, even specific ones such as environmental levies, from the scope of Article 87(1) EC, as account may in any event usefully be taken of the environmental objectives when the compatibility of the aid measure with the common market is being assessed pursuant to Article 87(3) EC.

(see paras 82-87, 91, 92)

4. State aid, as defined in the Treaty, is a legal concept and must be interpreted on the basis of objective factors. For that reason, the Community Courts must in principle, regard being had both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC. There is nothing to justify the Commission, when taking a decision under Article 88(3) EC, in having a ‘broad discretion’ in regard to the classification of a measure as ‘State aid’ for the purposes of Article 87(1) EC, which would mean that the judicial review of the Commission’s assessment was not in principle comprehensive. This is all the more true in view of the fact that, if the Commission is unable to conclude, following an initial examination in the context of the procedure under Article 88(3) EC, that the State measure in question either is not ‘aid’ within the meaning of Article 87(1) EC or, if classified as aid, is compatible with the Treaty, or where that procedure does not make it possible for it to overcome the difficulties involved in determining whether the measure in question is compatible with the common market, the Commission is under a duty to initiate the procedure under Article 88(2) EC, ‘without having any discretion in that regard’. Furthermore, while it is true that judicial review is limited with regard to whether a measure comes within the scope of Article 87(1) EC, in a case where the appraisals by the Commission are technical or complex in nature, the Court of First Instance is required to establish whether that is the position in the case before it.

(see paras 111-114, 185, 186)

5. An appeal which merely repeats or...