Contents
Judgment of the General Court (Fourth Chamber)15 January 2013note(State aid — Direct concession for the construction and subsequent management of a section of motorway — Decision to take no further action on the complaint — Action for annulment — Actionable measure — Locus standi — Individual concern — Admissibility — Definition of aid — State resources)In Case T-182/10,Associazione italiana delle società concessionarie per la costruzione e l’esercizio di autostrade e trafori stradali (Aiscat), established in Rome (Italy), represented by M. Maresca, lawyer,vEuropean Commission, represented by P. Rossi and D. Grespan, acting as Agents,Concessioni Autostradali Venete — CAV SpA, represented by C. Malinconico and P. Clarizia, lawyers,THE GENERAL COURT (Fourth Chamber),composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,Registrar: J. Palacio González, Principal Administrator,having regard to the written procedure and further to the hearing on 20 June 2012,gives the following
Judgment
Background to the dispute
1By letter dated 10 July 2008 (‘the complaint’), addressed to the Commission of the European Communities, the applicant, the Associazione Italiana delle Società Concessionarie per la costruzione e l’esercizio di Autostrade e Trafori stradali (Aiscat), complained of, inter alia, infringement, by the Italian Government, of the EU rules on market access, competition and State aid. According to Aiscat, by Article 2(290) of Law No 244 of 24 December 2007 (ordinary supplement to the GURI No 300, of 28 December 2007), the Italian authorities directly granted the intervener, the company Concessioni autostradali Venete — CAV SpA, in which the Veneto Region (Italy) and the Azienda nazionale autonoma delle strade SpA (ANAS) — belonging to the Italian State — have a share, the concession as well as the ordinary and extraordinary maintenance of the section of the A4 motorway known as the ‘Passante di Mestre’ (‘the Passante’).
2The Passante is a section of motorway, put into operation on 8 February 2009, which drivers may use instead of the A57 motorway, known as the ‘Tangenziale di Mestre’, and/or the A27 motorway to connect in both directions Padua (Italy) with either Belluno (Italy), in the north, or Trieste (Italy), in the east. The construction of that motorway section sought to resolve the congestion problems on the A57 and the A27 motorways. For the purposes of the present judgment, the designation ‘Tangenziale’ shall apply to stretches of the A57 and the A27 motorways which may be avoided by using the Passante.
3By letter dated 4 November 2009, signed by the Director of the Directorate ‘Internal market and sustainable development’ of the Directorate-General for ‘Energy and Transport’, the Commission informed the applicant that, on the basis of the information available and, in particular, in the light of the contractual provisions concerning management of the Passante by CAV, there was no unjustified advantage in favour of CAV. Furthermore, the end of the letter indicated that it was sent in accordance with the second sentence of Article 20(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1).
4By letter dated 12 November 2009, the applicant reiterated its complaint, by requesting the Commission to analyse the concession at issue in favour of CAV as regards awarding the contract without a call for tenders for constructing and managing the Passante and as regards the increase of the toll on the A57 and the A27 motorways which are an alternative route to the Passante.
5In that letter, the applicant stated, in particular, as regards the alleged infringement of the rules on State aid, that the amount of the toll on the Tangenziale had been increased in order to ensure an equivalent toll for drivers between the full journey made on both sections, despite the fact that the Passante was longer than the Tangenziale. Given that the result of that increase served to finance the construction of the Passante, CAV, as operators of the Passante, had benefited from State aid.
6By letter dated 10 February 2010, again signed by the Director of the ‘Internal market and sustainable development’ directorate of the ‘Energy and Transport’ DG (‘the contested decision’), the Commission responded to that new letter, by relying again on the second sentence of Article 20(2) of Regulation No 659/1999.
7In the contested decision, firstly, the Commission indicated, as regards the aspect of the contract being awarded without a call for tenders for the concession at issue, that on 14 April 2009 it had closed the infringement proceedings No 2008/4721 which had been initiated in that respect, since the conditions set by the case-law of the Court of Justice for directly awarding the contract for the concession to CAV were satisfied.
8As regards, secondly, the alleged infringement of the applicable State aid rules, the Commission stated that the information which it had did not indicate an infringement of Article 7(9) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42), as amended. Moreover, since the toll was paid directly to CAV by drivers on the Tangenziale, State resources did not appear to be involved. Moreover, the obligations imposed on CAV in various contractual provisions relating to the concession were of such a nature as to exclude any undue advantage in favour of CAV.
9Finally, thirdly, the Commission considered that the fact that by awarding the concession to CAV as a company held by the public authorities, the Italian Government had regained a market, namely of toll motorways that had previously been liberalised, did not necessarily imply that State aid had been granted to CAV.
Procedure and forms of order sought by the parties
10By application lodged at the General Court Registry on 19 April 2010, the applicant brought the present action.
11By separate document lodged at the Court Registry on 2 July 2010, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. On 30 July 2010 the applicant lodged observations on the objection of inadmissibility raised by the Commission.
12By letter lodged at the Registry of the Court on 17 December 2010, CAV applied for leave to intervene in these proceedings in support of the form of order sought by the Commission. The Commission and the applicant submitted observations on the admissibility of the application to intervene, on 19 January and 2 February 2011, respectively.
13By order of 28 February 2011, the General Court (Fourth Chamber) reserved its decision on the objection of inadmissibility for the final judgment and reserved the costs.
14By order of 2 March 2011 the President of the Fourth Chamber of the General Court granted CAV leave to intervene in support of the form of order sought by the Commission.
15On hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, put questions in writing to the parties. The parties provided their answers within the prescribed period.
16The parties presented oral arguments and replied to the Court’s oral questions at the hearing on 20 June 2012. Following that hearing, by order of 11 July 2012, the General Court (Fourth Chamber) reopened the oral procedure. On the same date, by way of measures of organisation of procedure, the General Court invited the applicant to produce certain documents. The applicant produced the requested documents within the time-limits laid down. The intervener and the Commission submitted observations on the documents produced on 2 and 27 August 2012, respectively.
17On 29 August 2012, the General Court closed the oral procedure.
18The applicant claims that the General Court should annul the contested decision.
19The Commission, supported by CAV, contends that the Court should:— dismiss the action as inadmissible;— in the alternative, dismiss the action;— order the applicant to pay the costs.
Law
A –Admissibility
20The Commission raises two pleas of inadmissibility, alleging, first, that the contested decision does not constitute an act open to challenge for the purposes of Article 263 TFEU and, second, that the applicant does not have locus standi.
1.The first plea of inadmissibility, alleging that the contested decision does not constitute an act open to challenge
21The Commission claims, in essence, that the contested decision only informed the applicant, in accordance with the second sentence of Article 20(2) of Regulation No 659/1999, that the Commission was unable to take a decision, because, in the light of the information in its possession, the case did not appear to imply that unlawful aid had been granted. According to the Commission, it is necessary to distinguish such a case from that to which the third sentence of the same paragraph refers, in which the Commission, following a complaint, opens the preliminary examination stage on the expiry of which it adopts a decision under Article 4 of Regulation No 659/1999, of which it informs the complainant.
22In the present case, as regards the substance of the contested decision, on the three aspects concerning possible incompatibility with the rules on State aid that the applicant had raised in its complaint, none were based on sufficient evidence which could result in a finding of relevant circumstances for the purposes of a possible investigation within the meaning of the State aid rules in force.
23Finally, according to the Commission, many reasons of a formal nature prevent considering the contested decision to be a measure that may be subject to an appeal. Accordingly, it notes, firstly, that it is only a Director within the ‘Energy and Transport’ DG who ruled on the complaint and not the Commission itself as a collegiate body, secondly, that the contested decision is not addressed to the Member State concerned as all decisions on State aid must be, and, thirdly, that it specifically refers to the second sentence of Article 20(2) of Regulation No 659/1999, by inviting the complainant to pursue the dialogue with its services if it considered that appropriate.
24The applicant claims, in essence, that it is apparent from the contested decision that the Commission adopted a definitive position on the absence, in the present case, of State aid and consequently refused to initiate the formal investigation procedure. It claimed that, in similar circumstances, the arguments of a formal nature relied on by the Commission were irrelevant.
25It is necessary to note that the Commission’s position continues, in essence, to consider that, in reaction to a complaint concerning State aid, it has the option either to open the preliminary examination stage which leads to a decision within the meaning of Article 4 of Regulation No 659/1999, or, if it considers that there are insufficient grounds to rule on the case, to close the complaint without opening the preliminary stage. In that last case, the complainant has no legal remedy to oppose the closure of the complaint.
26That position has been invalidated by the case-law of the Court of Justice.
27The Court of Justice has held that the examination of a complaint on State aid necessarily gives rise to the opening of the preliminary examination stage which the Commission is obliged to close by adopting a decision pursuant to Article 4 of Regulation No 659/1999. Where the Commission finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid, it refuses by implication to initiate the formal investigation procedure, a measure which cannot be characterised as a mere provisional measure (Case C-322/09 P NDSHT v Commission [2010] ECR I-11911, paragraphs 49 to 51 and 53).
28Accordingly, once the complainant has submitted additional observations following a first letter from the Commission, informing it, in accordance with the second sentence of Article 20(2) of Regulation No 659/1999, that it considers that there are insufficient grounds for taking a view on the case, the Commission is required, in accordance with Article 13(1) of that regulation, to close the preliminary examination stage by adopting a decision pursuant to Article 4(2), (3) or (4) of that regulation, that is to say, a decision stating that aid does not exist, raising no objections, or initiating the formal investigation procedure (Case C-521/06 P Athinaïki Techniki v Commission [2008] ECR I-5829, paragraph 40).
29Moreover, to determine whether an act by the Commission constitutes such a decision, it is necessary to take account only of its substance and not whether or not it satisfies certain formal requirements, otherwise the Commission could avoid review by the judicature simply by failing to adhere to such formal requirements (Athinaïki Techniki v Commission, paragraph 28 above, paragraphs 44 to 46).
30In particular, it follows from that case-law that it is necessary to reject the Commission’s argument according to which its obligation to adopt a decision following the preliminary examination stage, or the legal classification of its response to a complaint, is subject to a condition as to the quality of the information submitted by the complainant, that is, its relevance or detail. The poor quality of information submitted in support of a complaint cannot therefore relieve the Commission of its obligation to open the preliminary examination stage or to close that examination by way of a decision under Article 4 of Regulation No 659/1999.
31It is necessary to add, moreover, that contrary to the arguments made by the Commission, such an interpretation of NDSHT v Commission, paragraph 27 above, does not impose an obligation of excessive examination in cases where the information supplied by the complaint is vague or concerns a very broad field. Although Athinaïki Techniki v Commission, paragraph 28 above, and NDSHT v Commission, paragraph 27 above, note, in particular, the Commission’s obligation to open, following receipt of a complaint on State aid, the preliminary examination stage and to close it by a formal decision, those judgments do not, by contrast, contain any indication as to the extent of the examination which the Commission is required to carry out in the course of that preliminary examination stage.
32In the present case, the applicant had already submitted additional observations in response to the first information it received from the Commission, under the second sentence of Article 20(2) of Regulation No 659/1999, informing it that the Commission did not intend to pursue the complaint. Accordingly, the Commission was required to adopt a decision under Article 4 of Regulation No 659/1999. As is apparent from the case-law referred to in paragraph 29 above, to determine whether the contested decision is such a decision, it is necessary solely to consider whether, account being taken of its substance and the Commission’s intention, the latter once and for all set out its position on the measures complained of by the applicant.
33The contested decision contains such a definitive taking of position. The contested decision states, at the end of an examination of the circumstances of the present case, that ‘it does not appear that State resources are concerned’ and that ‘it is therefore clear that CAV does not make any unjustified additional gain’. The Commission added, as regards specifically the fact that the Italian Government had ‘reinvested’ in a market which had previously been liberalised, that that does not necessarily imply that State aid had been granted to CAV. The Commission therefore clearly adopted a position in so far as, in its view, the measures complained of by the applicant, such as specified in its additional observations, did not constitute State aid. Consequently, it is necessary to categorise the contested decision as a decision adopted under Article 4(2) of Regulation No 659/1999, under which ‘[w]here the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision’.
34It must be added that, in accordance with the case-law referred to in paragraph 29 above, the manifest failure to observe the formalities required for a decision under Article 4 of Regulation No 659/1999 does not prevent such a categorisation.
35Therefore, the first plea of inadmissibility raised by the Commission must be rejected.
2.The second plea of inadmissibility, alleging that the applicant does not have locus standi
36The Commission claims that the applicant challenges only the substance of the assessment of its services concerning the insufficiency of relevant factors to pursue the examination of the complaint, by relying on grounds alleging an infringement of an essential procedural requirement, an inadequate statement of reasons, and an infringement of Article 107 TFEU, as well as a distortion of the facts. In contrast, the applicant does not refer at any point in its application to the protection of its procedural rights or any indications showing the existence of serious difficulties which the Commission services may have encountered during the preliminary evaluation of the alleged aid measures. The Commission states, in that respect, that it is not for the General Court to re-categorise the heads of claim as regards the substance of the decision as heads of claim seeking protection for the applicant’s procedural rights. The Commission considers, therefore, that the applicant must show that it is individually concerned by the contested decision, which it has not done in the present case.
37The Commission claims that, moreover, it is not apparent from the application whether the applicant acts for the purposes of protecting its own interests as an association or, on the other hand, for the purposes of protecting the interests of one or more of the undertakings which it could represent. In the Commission’s view, the applicant does not give any specifications at all as to the undertakings which it represents and also does not indicate whether it received authorisation to act on behalf of those undertakings.
38The applicant opposes those arguments, by claiming that it is a matter of common knowledge that it represents companies, entities and groups having received concessions to construct and/or operate motorways and road tunnels in Italy.
39In the present case, firstly, it intervenes to protect the interests of its 23 members as regards the fact that it was deprived of the possibility of participating in a call for tenders for the purposes of the Passante concession, awarded directly to CAV. Secondly, it acted in the interest of three of its members, namely Società delle autostrade di Venezia e Padova SpA (‘SAVP’), Autovie Venete SpA and Autostrade per l’Italia SpA, each of which is a concessionaire for a section of the Tangenziale and whose market share is in particular prejudiced by the diversion of road traffic to the Passante, which was caused by the increase of the toll on the Tangenziale.
40According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (Case 25/62 Plaumann v Commission [1963] ECR 95, page 107; Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I-10737, paragraph 33; and Case C-487/06 P British Aggregates v Commission [2008] ECR I-10505, paragraph 26).
41In the case of a Commission decision on State aid, it must be borne in mind that, in the context of the procedure for reviewing State aid provided for in Article 108 TFEU, 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 the context of the latter, 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 (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 38; Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 40 above, paragraph 34; and British Aggregates v Commission, paragraph 40 above, paragraph 27).
42It follows that, where, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission finds, by a decision taken on the basis of Article 108(3) EC, that aid is compatible with the internal market, the persons intended to benefit from those procedural guarantees may secure observance therewith only if they are able to challenge that decision before the EU Courts. For those reasons, an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 108(2) TFEU is declared to be admissible where that person seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision (Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 40 above, paragraph 35 and the case-law cited, and British Aggregates v Commission, paragraph 40 above, paragraph 28).
43By contrast, if the 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 108(2) TFEU cannot suffice to render the action admissible. It must then demonstrate that it has a particular status within the meaning of Plaumann v Commission, paragraph 40 above. That would in particular apply where the applicant’s market position would be substantially affected by the aid to which the decision at issue relates (Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraphs 22 to 25; Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 40 above, paragraph 37; and Case C-319/07 P 3F v Commission [2009] ECR I-5963, paragraph 34).
The objective of the present action
44In the present case, firstly, it was stated, at paragraph 33 above, that the contested decision is a decision, within the meaning of Article 4(2) of Regulation No 659/1999, by which the Commission refused to initiate the formal investigation procedure as regards the alleged unlawful aid.
45Secondly, the applicant’s claims before the General Court and the pleas raised in support of them seek to obtain annulment of the contested decision on the substance, on the ground that the facts complained of in its complaint constituted aid incompatible with the internal market. The two pleas in law presented by the applicant are entitled, first, ‘Infringement of essential procedural requirements. Lack and contradictory nature of reasons. Infringement of Article [107 TFEU] by the direct award of the concession for the construction and the management of the Passante di Mestre to CAV’, and, second, ‘Infringement of essential procedural requirements. Lack and contradictory nature of reasons. Infringement of Article [107 TFEU] by the increase of the tariff which occurred on the [Tangenziale]’. Moreover, in the arguments made under those two pleas in law, in essence, it set out the reasons why it considered that the measures disputed by it ought to be categorised as State aid. By contrast, the applicant did not request annulment of the contested decision on the ground that the Commission had infringed the obligation to initiate the formal investigation procedure referred to in Article 108(2) TFEU or on the ground that its right to be associated with that procedure, within the meaning of the case-law referred to in paragraph 41 above, had been denied, contrary to that provision.
46It should be added in that regard that that finding cannot be rebutted by the applicant’s argument that the aspect of the protection of procedural rights is ‘intrinsically linked’ to the application it lodged, although that is not expressly set out. The Court of Justice has stated, in comparable circumstances to those of the present case, that the General Court cannot re-categorise the pleas in law raised by the applicant, thereby altering the objective of the dispute brought before it (Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 40 above, paragraphs 44 and 45).
47Therefore, in accordance with the case-law referred to in paragraph 43 above, the applicant must show that it has a particular status within the meaning of Plaumann v Commission, paragraph 40 above.
48It should be recalled, in that regard, that a professional association which is responsible for protecting the collective interests of its members is entitled to bring an action for the annulment of a final decision of the Commission on State aid only in two sets of circumstances, namely, first, where the undertakings which it represents or some of those undertakings themselves have locus standi and, second, if it can prove an interest of its own, in particular because its position as a negotiator has been affected by the measure of which annulment is sought (Case T-380/94 AIUFASS and AKT v Commission [1996] ECR II-2169, paragraph 50; Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Others v Commission [2009] ECR II-3029, paragraph 108; and Case T-236/10 Asociación Española de Banca v Commission [2012] ECR, paragraph 19).
The interests defended by the applicant in the context of the present action
49In the present case, the Commission does not dispute that the applicant — as, moreover, its name indicates — is an organisation representing motorway construction and management concessionaires in Italy. On the other hand, it claims that the introduction of the present action does not form part of the objectives in the applicant’s statutes.
50It must be noted in that regard that Article 3(a) of the applicant’s statutes provides that its object is to ‘study the technical, administrative, financial and legal as well as fiscal problems, which are of general interest for its members in the sector of motorways and tunnels awarded by concession, as well as in that of general transport infrastructure awarded by concession, and to determine the criteria and conditions to be followed in order to solve them’. Even if this wording does not expressly provide for bringing an action before the General Court, such authorisation is however implicitly covered by the task of ‘studying the administrative and legal problems’ and of ‘determining the conditions to be followed to resolve them’.
51That interpretation is confirmed by Minute No 275 of the applicant’s Board of Directors, of 22 May 2008, produced by the applicant. It is apparent inter alia from that document that, on the basis of a note headed ‘CAV — Aiscat’s actions in order to protect the market for the construction and management of motorway infrastructure’, the award of the concession for the Passante and the increase of the toll on the Tangenziale were subject to discussions within the Board of Directors, in which, in particular, the representatives of SAVP, Autovie Venete and Autostrade per l’Italia participated. That report contains, inter alia, the following passage:‘CAVThe President, in response to the question on CAV, a joint enterprise created by the ANAS and the region of Veneto, and the question on Aiscat’s actions in order to protect the market for the construction and management of motorway infrastructure, states that [the applicant] has the obligation to bring a legal action, an action based on unlawfulness in the light of Community law, in several respects, of the implementation of Article 2(290) of Law No 244 of 24 December 2007.The Board agrees.’
52That minute led to the conclusion that the representatives of the applicant’s members who participated in the meeting of 22 May 2008 assumed that the applicant’s functions under its statute could include, where necessary, bringing legal proceedings. Accordingly, contrary to the Commission’s argument, the lack of a reference in the minute of that meeting of a specific authorisation to bring the present action against the contested decision, which had not yet been adopted on the date of the meeting of 22 May 2008, is irrelevant.
53Moreover, contrary to what the Commission appears to consider, it is not necessary that an association whose tasks under its statutes include defending the interests of its members have, in addition, a mandate or specific authority established by the members whose interests it defends in order to have locus standi recognised to act before the EU courts.
54Likewise, since bringing proceedings is covered by the applicant’s tasks set out in its statutes, the fact that some of its members may, subsequently, distance themselves from bringing proceedings is not such as to suppress its legal interest in bringing proceedings. Accordingly, the letter from the representative of Autovie Venete dated 31 July 2012, supplied by the intervener, in which it declares that Autovie Venete has no interest in the present action, is irrelevant for assessing the applicant’s legal interest in bringing proceedings.
55Finally, it is unambiguously apparent from the documents before the Court that, in the context of the present action, the applicant acts not to protect its own interests as an association, but those of its members. In that regard, first, it must be noted that the applicant mentions in the application the distortion of competition which, according to it, ‘the participants present on the market [for motorway concessions]’ must face due to the concession to CAV being awarded without a call for tenders. Second, it identifies three companies which are particularly affected by the toll increases on the Tangenziale, in that each holds the concession for a section of the Tangenziale, that is SAVP, Autovie Venete and Autostrade per l’Italia. The applicant’s statements in the observations on the plea of inadmissibility, in which it specifically states that it does not protect its own interests but those of its members, therefore only confirm the indications already provided in the application.
56Admittedly, contrary to what the applicant maintained in the application, as regards the three companies it had identified as being the concessionaires of different sections of the Tangenziale, SAVP’s concession on a section of the Tangenziale expired on 30 November 2009 and since that date that company is no longer one of its members. The applicant confirmed those facts in the context of its response to the written questions from the General Court.
57Nevertheless, there remain two companies, whose interests, it claims, are affected by the measures called into question in the complaint, that is, Autovie Venete and Autostrade per l’Italia.
58It is therefore necessary to declare that the applicant, first, is a professional association which is responsible for defending the collective interests of its members, within the meaning of the case-law referred to at paragraph 48 above, and, second, clearly indicated, in the application, that the action sought to defend the interests of some of its members.
The individual concern of the applicant’s members
59In accordance with the case-law cited at paragraph 48 above, it is furthermore necessary to examine if the applicant’s members had a particular status, within the meaning of Plaumann v Commission, paragraph 40 above.
60As a preliminary point, it must be borne in mind, as regards the scope of judicial review, that it is not for the EU courts, when considering whether the application is admissible, to make a definitive finding on the competitive relationship between the applicant’s members and the undertaking in receipt of the subsidy. In that context, it is for the applicant alone, which is an association of companies, entities and groups which have obtained concessions for the construction and/or for the operation of motorways and road tunnels in Italy, to adduce pertinent reasons to show that the alleged aid may adversely affect the legitimate interests of one or more of its members by seriously jeopardising their position on the market in question (see, by analogy, Cofaz and Others v Commission, paragraph 43 above, paragraph 28, and Case T-36/99 Lenzing v Commission [2004] ECR II-3597, paragraph 80).
61Moreover, as regards the field of State aid, persons other than those to whom a decision is addressed who call in question the merits of a decision appraising the aid are regarded as being individually concerned by that decision where their position on the market is substantially affected by the aid which is the subject of the decision in question (see, to that effect, Cofaz and Others v Commission, paragraph 43 above, paragraphs 22 to 25, and Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 40 above, paragraphs 37 and 70).
62It is necessary to examine that question separately in respect of each of the two measures called into question by the applicant before the General Court, namely the award without a call for tenders of the concession for the Passante and the increase of the toll on the Tangenziale.
–The award without a call for tenders of the concession for the Passante
63In the absence of any indication from the parties on the relevant market, it is necessary to identify the relevant market as that of motorway concessions in Italy, on which the 23 members of the applicant, operators of toll motorways, represent the demand, as against the State, represented by the ANAS, which grants the concessions. According to the statistics presented by the applicant, the network of toll motorways in Italy in November 2009 covered approximately 5500 km.
64As regards establishing whether a position on the market is substantially affected, the Court has had occasion to clarify that the mere fact that a measure such as the contested decision may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure (see, to that effect, Joined Cases 10/68 and 18/68 Eridania and Others v Commission [1969] ECR 459, paragraph 7; order of 21 February 2006 in Case C-367/04 P Deutsche Post and DHL Express v Commission, not published in the ECR, paragraph 40; and Case C-525/04 P Spain v Lenzing [2004] ECR I-9947, paragraph 32).
65Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it in a similar way to the undertaking in receipt of the aid (Case C-106/98 P Comité d’entreprise de la Société française de production and Others v Commission [2000] ECR I-3659, paragraph 41; order in Deutsche Post and DHL Express v Commission, paragraph 64 above, paragraph 41; and Spain v Lenzing, paragraph 64 above, paragraph 33).
66However, demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance, but may be made by demonstrating the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (Spain v Lenzing, paragraph 64 above, paragraph 35).
67In the present case, as regards the substantial effect on the market position of the applicant’s members by the award without a call for tenders for the concession for the Passante, it must be noted that the applicant sets out in the application the reasons why it considers that such a direct award constitutes an infringement of the prohibition on State aid. In the context of its observations on the plea of inadmissibility it pointed out the interests of its 23 members which had been deprived of the possibility of participating in a call for tenders for the concession for the management of the Passante.
68In a market covering a total of 5500 km of toll motorways, if the award without a call for tenders of the concession for a section of motorway of a length of approximately 32 km may have a certain effect on competition, in that the other players did not have the chance to increase the length of the networks respectively operated by them, it cannot be considered in itself as having a substantial effect on the competitive position of those other players. Therefore, the applicant has failed to establish that its members were affected by the contested decision in a manner that is different to any other economic operator seeking to operate the concession for the Passante.
69Therefore, the conclusion to be drawn is that as regards the award without a call for tenders for the concession for the Passante, the applicant’s members were not individually concerned by the contested decision. Consequently, they were not authorised to bring an action in that respect themselves and the applicant is also not authorised to bring proceedings to represent their interests.
–The toll increase on the Tangenziale
70In the absence of any indication from the parties, it is necessary to identify the relevant market as that of making available motorway connections for through traffic, in return for payment of a toll, on the two routes for which there is competition between the Tangenziale and the Passante. It concerns, firstly, the route, in both directions, between the point, on the A4 motorway coming from Padua, where the Tangenziale and the Passante and the Passante intersection with the A27 motorway in the direction of Belluno separate. That route can be made either by using the Passante until its intersection with the A27 in the direction of Belluno, or by using firstly the A57 motorway and then taking the fork to the A27 towards the north, in the direction of Belluno. Secondly, it concerns the route, in both directions, between the point, on the A4 motorway coming from Padua, where the Tangenziale and the Passante and the point of the A4 motorway towards Trieste where the Tangenziale rejoins the A4 motorway separate. That journey can be made either by using the Passante along its entire length or by using the A57 motorway along its entire length.
71It is on those two routes, which may be taken by using either the Tangenziale or the Passante that the respective holders of the concessions on those sections are in competition with each other. That market is characterised in particular by the fact that drivers have the choice between only two competing offers. Therefore the holder of the concession on the Passante, on the one hand, and the holders of the concession on the Tangenziale, on the other, are in direct competition.
72In that regard, it must be borne in mind that, as was stated at paragraph 56 above, the company SAVP was no longer, at the time of bringing the action, holder of a motorway concession on the Tangenziale, nor, moreover, a member of the applicant. As regards the individual concern of the members of the applicant, for the purposes of examining the admissibility of the present action, account must be taken of the situation of the companies Autovie Venete and Autostrade per l’Italia alone. Whereas Autovie Venete is a concessionaire of a section of approximately 10 kilometres of the Tangenziale, located between Mestre (Italy) and the junction with the Passante in the direction of Trieste, Autostrade per l’Italia is a concessionaire of the section of the A27 motorway, of approximately 6 kilometres, in the direction of Belluno (Italy), connecting the A57 motorway and the Passante.
73In order to show a sharp reduction in traffic on the Tangenziale as from the date that the Passante entered into service, the applicant produced data on traffic trends for the months of January to July 2009, compared to the same period in 2008. Those data indicate, for the seven first months of 2009, a reduction of vehicle-kilometers of approximately 13% for light-duty vehicles, and of approximately 28% for heavy-duty vehicles, for the part of the network managed at that time by SAVP, of which the largest part (16 km of 23.3 km managed by SAVP) is located on the Tangenziale (the other part being composed of the Tangenziale motorway link to Venezia-Tessera airport). Even if those data, first, supply information only on part of the Tangenziale, and, second, contain traffic flows which are not located on the Tangenziale, it may be inferred from that that traffic on the Tangenziale reduced significantly after the Passante entered into service. Those figures were not validly challenged. The intervener maintained, during the hearing, to have ‘other figures’, without however specifying them or adducing evidence in that regard. The Commission, for its part, did not dispute the data supplied by the applicant. It restricted itself to disputing the causal link between the increase of the toll on the Tangenziale and the reduction in traffic on that section, the latter being due, in its view, to the simple fact of the Passante entering into service as a competing route.
74In that regard, it must be acknowledged that the traffic flow on the Tangenziale was already likely to reduce substantially on account of the mere fact of the opening of the Passante and that it is not possible to determine to what extent that reduction was compounded by the fact that, in addition, the toll on the Tangenziale was increased. However, it can reasonably be assumed that the registered reduction is larger than if the toll had not been increased. Moreover it is not disputed between the parties that the common objective of the two measures was specifically to divert through traffic to the Passante, in order to reduce traffic on the Tangenziale. The Italian authorities therefore clearly considered that, in the event of a lower toll for the journey on the Tangenziale than on the Passante, solely bringing the latter into service as an alternative route was not going to be sufficient to divert the traffic towards that new section to the extent desired. If that were not the case, it would not have been necessary to make that increase in the toll.
75It follows that the argument put forward by the Commission during the hearing, that the transfer of traffic from the Tangenziale to the Passante would have occurred in the same way in the absence of the equivalent toll on both routes, drivers’ choice being made exclusively on the basis of the traffic situation, must be rejected.
76Moreover, given that, as was set out at paragraph 70 above, the relevant market is that of making available motorway connections for through traffic, in return for payment of a toll, on the two routes for which there is competition between the Tangenziale and the Passante, it is in relation to that restricted market that it is necessary to assess the substantial effect of the market position of Autovie Venete and of Autostrade per l’Italia and not in relation to the much wider market of motorway concessions in all of Italy. Consequently, it is necessary to reject the Commission’s argument put forward during the hearing, that in relation to the network of a total length of 230 km and of 3000 km respectively managed by Autovie Venete and Autostrade per l’Italia, an increase of the toll on short sections managed by them on the Tangenziale, such as those identified at paragraph 72 above, does not support the conclusion of a substantial effect on their market position.
77Finally, it must be noted that heavy-duty traffic, for which the reduction in traffic was larger, constitutes the most lucrative segment for motorway concessionaires, so that a reduction in that segment is particularly capable of significantly affecting their operating income.
78In those circumstances, it must be held that the applicant showed to the requisite legal standard that, because of the increase of the toll on the Tangenziale, which was the subject of the complaint, two of its members, that is Autovie Venete and Autostrade per l’Italia, were in a factual situation which distinguishes them individually just as in the case of the person to whom the contested decision is addressed, within the meaning of the case-law referred to at paragraph 65 above, and that their commercial results developed less favourably than those which would have been registered in the absence of such a measure, within the meaning of the case-law referred to at paragraph 66 above. It should be added that, as holders of the concessions on the Tangenziale, those two companies were the only ones, with SAVP, which were negatively affected by that increase of the toll and that increase benefited their only competitor on the relevant market, namely CAV as holders of the concession on the Passante.
79It follows that both Autovie Venete and Autostrade per l’Italia were authorised to bring an action themselves against the contested decision, in so far as that decision did not start the formal examination procedure with regard to the increase of the toll. Consequently, the action brought by the application in representing their interests is also admissible as regards the increase of the toll.
80Therefore, the second plea of inadmissibility as regards the direct award of the concession for the management of the Passante must be upheld and it must be rejected as regards the increase of the toll on the Tangenziale.
3.Conclusion on admissibility
81Consequently, the plea of inadmissibility must be upheld as regards the direct award of the concession for the Passante and dismissed as to the remainder. The action is therefore admissible in so far as it disputes the finding, made in the contested decision, that the increase of the toll on the Tangenziale does not constitute State aid. By contrast, it is inadmissible in so far as it disputes the finding that the direct award of the concession for the Passante does not constitute State aid.
B –Substance
82The applicant raises two pleas in law, alleging, in essence, infringement of an essential procedural requirement, infringement of the obligation to state reasons, infringement of Article 107 TFEU and a distortion of the facts.
1.The first plea in law, alleging infringement of essential procedural requirements, lack of and contradictory nature of grounds and infringement of Article 107 TFEU, as regards the direct award to CAV of the concession for the construction and management of the Passante
83The first plea in law, which is exclusively directed against the finding that the direct award of the concession for the Passante does not constitute State aid, cannot successfully be raised against the finding that the increase of the toll on the Tangenziale does not constitute State aid. Taking account of paragraph 81 above, it must therefore be dismissed as being ineffective.
2.The second plea in law, alleging infringement of essential procedural requirements, lack of and contradictory nature of grounds, distortion of facts, and infringement of Article 107 TFEU, as regards the toll increase on the Tangenziale
a)The complaints alleging infringement of essential procedural requirements, infringement of the obligation to state reasons and distortion of the facts
84As regards those complaints, relied on by the applicant in the context of its second plea in law, it must be stated, as the Commission correctly claimed regarding the obligation to state reasons, that they are mentioned in the heading of the second plea in law alone and are not substantiated by any argument, either in the application or in the reply.
85Consequently, the heads of claim alleging an infringement of an essential procedural requirement, of the obligation to state reasons and a distortion of the facts, raised in the context of the second plea in law, must be rejected as inadmissible in accordance with Article 44(1)(c) of the Rules of Procedure.
b)The head of claim alleging infringement of Article 107 TFEU
86The applicant claims that the construction of the Passante was financed by a tariff increase on the Tangenziale and that that increase, which led to an equal toll for both sections, produced a distortion of competition by diverting traffic from the Tangenziale to the benefit of the Passante.
87The Commission considers that neither the fact that the concessionaire of a section of the motorway receives a toll, nor that that toll was increased, implies a transfer of State resources.
88It must be borne in mind, in that regard, that the applicant does not claim that the conditions of the concession agreement for the Passante, concluded on 30 January 2009 between the ANAS and CAV, constitute State aid in that there is an imbalance between the obligation of CAV under that agreement, on the one hand, and the benefits which the latter could draw from the concession, on the other. The head of claim raised by the applicant is restricted to the question of the increase of the toll on the Tangenziale and the allocation of income from that increase to the construction costs of the Passante.
89As was stated at paragraph 33 above, the contested decision is a decision under Article 4(2) of Regulation No 659/1999, since it consists of the Commission’s finding, at the end of the preliminary examination stage, according to which the increase of the toll on the Tangenziale does not constitute aid. The applicant claims, in essence, that, in contrast, the Commission ought to have found that that measure constituted State aid.
90Article 107(1) TFEU declares incompatible with the internal market any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, and affects trade between Member States.
The factual circumstances of the present case
91First of all, it is necessary to define the way in which the increase at issue of the toll was used and the use of the income from that increase.
92The toll increase on the Tangenziale was decided for the first time by the delibera (administrative decision) No 128 of the Comitato interministeriale per la programmazione economica (Interministerial committee for economic planning, CIPE), of 6 April 2006 (GURI No 142, of 21 June 2006, p. 16). That act authorises ‘the insertion, in supplementary acts … to agreements in force with companies which manage motorways intersecting with the Passante di Mestre, clauses providing for the ISO-compliant toll in order to ensure, in time, the flow of necessary resources to complete the Passante’. It follows from the documents in the file that the principle of the ‘ISO-toll’ means that drivers, in both directions, between Padua and Trieste and between Padua and Belluno, have the choice of two routes without there being any difference in the price of the toll.
93The amount of the toll increase was fixed by the delibera No 3 of CIPE, of 26 January 2007 (GURI No 96, of 26 April 2007, p. 79). In accordance with that act, the increase was to consist of the addition, to the kilometrage actually covered by the traffic in transit, in both directions, on the Tangenziale, both on the section Padua-Trieste and on the section Padua-Belluno, of a notional distance of 10.14 km from 1 February 2007 and of 20.28 km from 1 January 2008.
94Following a delay in the entry into service of the Passante, those latter dates were subsequently delayed until 1 May 2008 and 1 January 2009 by the delibera No 24 of CIPE of 27 March 2008 (GURI No 157, of 7 July 2008, p. 55).
95In accordance with the provisions of the delibere referred to in the preceding paragraphs, the way in which the toll increase was used was part of the concession agreements linking ANAS of the one part and the management companies of the Tangenziale and the Passante of the other part.
96In accordance with Article 4 of the concession agreement for the Passante, concluded on 30 January 2009 between ANAS and CAV (‘the Agreement’) the concession relating to the Passante is to end on 31 December 2032. Under Article 6.2 of the Agreement, CAV undertake, inter alia, to reimburse ANAS, until 30 June 2010, all of the expenses incurred by the latter for the construction of the Passante. It follows from the file and, in particular, from Article 3.2(d) of the Agreement, that the construction of the Passante was, initially, financed by ANAS.
97It follows from Article 6.4 of the Agreement, that, in return, CAV is to receive:— firstly, the proceeds of the toll increase on the Tangenziale;— secondly, income from the toll on the Passante;— thirdly, since 30 November 2009, income from the former concession of SAVP, taken over by CAV, on part of the Tangenziale;— fourthly, income resulting from sub-concessionaires regarding service areas.
98Accordingly, ultimately, the result of the increase of the toll applied on the Tangenziale and the other sections mentioned in the previous paragraph enable the Italian State to recover the sums which it spent for the purpose of the construction of the Passante.
99As regards the details of the increase of the toll, Article 6.4 of the Agreement reproduces, in essence, the provisions of CIPE’s delibere referred to in paragraphs 93 and 94 above, by stipulating the addition, to the kilometrage actually covered by the through traffic, in both directions, on the Tangenziale, both on the section Padua-Trieste and on the section Padua-Belluno, of a notional distance of 10.14 km from 1 May 2008 and of 20.28 km from 1 January 2009. According to the indications given by CAV in the response to the written questions of the General Court and confirmed orally by the parties during the hearing, that increase will progressively diminish, in accordance with the economic and financial plan attached to the Agreement, until the end of the Agreement. Accordingly, the additional kilometrage was 19.88 km in 2010, 19.48 km in 2011 and 19.1 km since 1 January 2012.
100As for the methods of collecting and transferring the amounts received under additional kilometrage, the parties have shown consistently, in response to written questions from the General Court, that the sums in question were collected by the concessionaires managing the toll stations at issue, namely Autovie Venete for the station of Venezia-Est, Autostrade per l’Italia for the station of Venezia-Nord and CAV for the station Venezia-Padova, or in their names by a company held by Autostrade per l’Italia, to then be transferred to CAV according to the procedure set out in the interconnection agreement linking the various concessionaires.
101Those methods vary on the basis of the means of payment used by the user:— in the case of payment in cash or by credit card, the sums at issue are received by the concessionaire managing the toll station concerned which transfers them directly to CAV (for the toll station of Venezia-Padova managed by CAV, there is an internal accountancy transfer within CAV);— in the case of payment by teletoll (telepass) or by prepaid card (Viacard), systems which are managed by the company Telepass SpA, controlled by Autostrade per l’Italia, the sums at issue are received by Telepass and then transferred to CAV.
The criteria on State resources
102As regards the categorisation of the increase of the toll on the Tangenziale as State aid, the parties primarily disagree on the question of whether that measure implies a transfer of State resources for the benefit of CAV as concessionaires of the Passante.
103Firstly, the case-law of the Court of Justice shows that only advantages granted directly or indirectly through State resources are to be regarded as aid within the meaning of Article 107(1) TFEU. The distinction made in that provision between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (see Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 58 and the case-law cited).
104Secondly, as regards the concept of State resources, it should be borne in mind that it also follows from the Court’s case-law that Article 107(1) TFEU covers all the financial means by which authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Consequently, even though the sums involved in the measure at issue are not held permanently by the public authorities, the fact that they remain constantly under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State aid (see, to that effect, Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, paragraph 50, and Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 37).
105In the present case, as was pointed out in paragraphs 100 and 101 above, the sums corresponding to the result of the increase of the toll are paid directly to CAV either by Autovie Venete and Autostrade per l’Italia, or by Telepass, as private companies. The sums in question therefore are transferred directly and exclusively between private companies, without any public body thereby acquiring, if only transiently, possession or control. Consequently, they are not State resources within the meaning of the case-law referred to at paragraphs 103 and 104 above.
106Since the criteria regarding the allocation of State resources are not satisfied, the fact remains that, without it being necessary to examine the other constituent elements of the concept of State aid, the increase of the toll on the Tangenziale, and the allocation of the result of the increase on the reimbursement of the construction costs of the Passante, under the Agreement, do not constitute State aid.
107Consequently, the complaint alleging infringement of Article 107(1) TFEU must be rejected, as well as the second plea in law and the action in its entirety.
Costs
108Under 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. Moreover, under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the General Court may order that costs be shared or that each party bear its own costs.
109Since the applicant has been unsuccessful on the substance and the Commission has in part been unsuccessful as regards the pleas of inadmissibility that it raised, each of the main parties must bear half of the other’s costs. Furthermore, the applicant must bear CAV’s costs as interveners.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber)hereby:
1.Dismisses the action;
2.Orders Associazione italiana delle società concessionarie per la costruzione e l’esercizio di autostrade e trafori stradali (Aiscat) to bear half of its own costs and to pay half of the costs incurred by the European Commission and all of the costs incurred by Concessioni autostradali Venete — CAV SpA;
3.Orders the Commission to bear half of its own costs and to pay half of the costs incurred by Aiscat.
Delivered in open court in Luxembourg on 15 January 2013.
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