JUDGMENT OF THE COURT (Third Chamber)

17 September 2015 ( *1 )

‛Appeal — State aid — Actions for annulment — Article 263 TFEU — Admissibility — Unlawful and incompatible aid — Obligation to recover — European Commission decision not to extend the recovery obligation to the successor of the aid beneficiary — Interest in bringing proceedings — Action for damages and for the recovery of aid before the national courts — Locus standi — Appellant not individually concerned’

In Case C‑33/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 January 2014,

Mory SA , in liquidation, established in Pantin (France),

Mory Team , in liquidation, established in Pantin,

Superga Invest , formerly Compagnie française superga d’investissement dans le service (CFSIS), established in Miraumont (France),

represented by B. Vatier and F. Loubières, avocats, with an address for service in Luxembourg,

appellants,

the other party to the proceedings being:

European Commission , represented by T. Maxian Rusche and B. Stromsky, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, A. Ó Caoimh (Rapporteur), C. Toader, E. Jarašiūnas and C.G. Fernlund, Judges,

Advocate General: P. Mengozzi,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 27 April 2015,

after hearing the Opinion of the Advocate General at the sitting on 18 June 2015,

gives the following

Judgment

1By their appeal, Mory SA, Mory Team and Superga Invest request the Court to set aside the order of the General Court of the European Union in Mory and Others v Commission (T‑545/12, EU:T:2013:607 ) (‘the order under appeal’), by which the General Court dismissed the action brought by the appellants for annulment of Commission Decision C(2012) 2401 final of 4 April 2012 concerning the takeover of assets of the Sernam group as part of its composition with creditors (‘the decision at issue’).

Background to the dispute

The proceedings before the General Court and the judgment under appeal

16By application lodged at the Registry of the General Court on 17 December 2012, the appellants brought an action for annulment of the decision at issue.

17By document lodged at the Registry of the General Court on 25 March 2013, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court, alleging, first, that the appellants had failed to establish that they had an interest in bringing proceedings against the decision at issue and, secondly, that they were not individually concerned by that decision, within the meaning of the fourth paragraph of Article 263 TFEU.

18In the order under appeal, the General Court decided that the appellants had not substantiated their interest in bringing proceedings against the decision at issue and that, therefore, their action must be declared inadmissible on that sole ground, without it being necessary to examine the plea of inadmissibility raised by the Commission alleging that the appellants were not individually concerned by the decision at issue. In particular, that Court held that neither the action brought by the Mory companies, on 25 April 2007, before the tribunal administratif de Paris (Paris Commercial Court, France) seeking recovery of the aid at issue, nor the action brought by them on 7 May 2013 before the tribunal de commerce de Paris seeking an order that the Sernam group and Geodis were, in particular, jointly and severally liable to compensate for the damage that those companies caused them, were capable of giving them such an interest.

Forms of order sought and the procedure before the Court of Justice

19By their appeal, the appellants request the Court to:

—

set aside the order under appeal;

—

refer the case back to the General Court to be considered on its merits, and

—

reserve the costs.

21By document lodged with the Court Registry on 19 May 2014, Calberson applied, on the basis of the second subparagraph of Article 40 of the Statute of the Court of Justice of the European Union, for leave to intervene in the present case in support of the form of order sought by the Commission.

22That application was rejected by order of the President of the Court of 27 February 2015.

The application for reopening of the oral procedure

24It must be recalled that the Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (see judgment in Vnuk , C‑162/13, EU:C:2014:2146 , paragraph 30 and the case-law cited).

27However, the Court may at any moment, having heard the Advocate General, order the reopening of the oral part of the procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Nordzucker , C‑148/14, EU:C:2015:287 , paragraph 24).

The appeal

30The appellants put forward two grounds in support of their appeal. The first alleges that the General Court committed several errors of law in its assessment of their interest in bringing an action for annulment of the decision at issue. The second ground of appeal alleges an infringement of the fourth paragraph of Article 263 TFEU in so far as the General Court failed to find that they were directly and individually concerned by that decision.

31As a preliminary point, the appellants claim that there is no dividing line between the concepts of an interest in bringing proceedings and ‘direct or individual concern’. Those two concepts merge completely as regards the assessment of the admissibility of an action brought by a party which is not the addressee of a decision, within the meaning of the fourth paragraph of Article 263 TFEU. It is illogical to consider that a person who is directly and individually concerned by a decision does not have an interest in bringing proceedings. Likewise, it is inconceivable that a person could have an interest in bringing proceedings without being directly and individually concerned by a decision. By holding that those two concepts are distinct, the General Court infringed the fourth paragraph of Article 263 TFEU. Merely showing that a person is directly and individually concerned suffices to establish the admissibility of his action.

The first ground of appeal

Arguments of the parties

32By their first ground of appeal, the appellants claim that the General Court committed a member of errors of law in the examination which led it to hold that they had not established their interest in bringing proceedings for annulment of the decision at issue.

33In the first place, the appellants claim that the General Court’s reasoning is vitiated by a number of contradictions and errors of law where it held, in paragraphs 29 to 35 of the order under appeal, that Mory’s participation in the administrative procedure prior to the adoption of the Sernam 2 Decision was not capable of conferring on it an interest in bringing proceedings.

34First of all, the General Court contradicted itself in so far as, having in particular invoked, in paragraph 31 of the order under appeal, in support of its decision that the appellants did not have an interest in bringing proceedings, the case-law concerning State aid according to which an applicant must always show that the decision that aid is compatible with the internal market is capable of affecting its position on the market, it stated, in paragraph 57 of that order, that the Commission did not take a position, in the decision at issue, on the existence and potential compatibility of aid on the basis of Article 108 TFEU.

35Next, the General Court’s finding, in paragraph 33 of the order under appeal, that the question of procedures for recovering the aid at issue is a matter solely for the Commission and the Member State concerned, would exclude, in principle, a party, other than that Member State, having an interest in the decision ordering recovery having an interest in bringing proceedings against a decision relating to procedures for recovering that aid. Such an assessment contradicts the fourth paragraph of Article 263 TFEU, in accordance with which an action against such a decision is open to any person directly and individually concerned by that decision.

37In the second place, the appellants consider that the General Court committed errors of law and of assessment when it held, in paragraphs 36 to 51 of the order under appeal, that the actions brought before the national courts for recovery of the aid at issue and compensation for damage suffered did not give them an interest in bringing proceedings before the EU Courts.

38First of all, the appellants claim, in that regard, that the General Court wrongly held that an interest in bringing proceedings against an EU decision can be substantiated only where a party is entitled to bring an action for damages before the national courts. That interest could also result from an action for effective recovery of aid by the Member State concerned. In this case, Mory brought such proceedings before the tribunal administratif de Paris seeking an order that the French State must recover the aid at issue from all the successive beneficiaries thereof, including Geodis. Neither the Commission nor the General Court is competent to contest the appellants’ standing and interest in the context of those proceedings, as long as they were validly brought and are ongoing.

40Finally, the appellants consider that an action for damages before the national court against Geodis is valid in law, since the latter should be regarded as the actual beneficiary of the aid at issue and, on that basis, as being responsible for compensating the harm caused to the Mory companies by the grant of that aid, jointly and severally with the successive beneficiaries and their provider, the Société nationale des chemins de fer français (SNCF). Furthermore, if the decision at issue was annulled, the appellants could rely before the national court on the concept of French law known as ‘enrichissement sans cause’ (‘unjust enrichment’) against Geodis.

41In the third place, the appellants complain that the General Court held that Superga Invest had no interest in bringing proceedings by refusing to consider that such an interest derived from the interest of the Mory companies, whose main shareholder is Superga Invest.

42In the fourth place, the appellants complain that the General Court held, in paragraphs 54 to 58 of the order under appeal, that their procedural right to secure the instigation of a formal investigation procedure under Article 108(2) TFEU had not been infringed.

43First of all, the appellants claim that, while they had brought to the attention of the Commission the existence of risks of circumvention due to the envisaged transfer, that institution, by adopting the decision at issue, ruled out the opening of a detailed investigation procedure and infringed their procedural rights. The appellants were therefore prevented from obtaining a detailed examination, not of new aid, but of the unlawful application of the Sernam 3 Decision.

44Next, the appellants consider that the General Court deliberately avoided examining whether they were directly and individually concerned by the decision at issue in order to avoid addressing the question of the nature of the decision at issue, which was classified by the Commission as a sui generis decision. Being individually affected by that decision, the appellants are entitled to challenge it in order that the General Court may determine whether the Commission was competent to adopt that decision notwithstanding the lack of a legal basis.

45Finally, the appellants complain that the General Court held, in paragraph 33 of the order under appeal, that given that the decision at issue relates not to the compatibility of State aid with the internal market, but to the procedures for recovering the aid at issue, it concerns only the Commission and the Member State which is required to recover the aid. The question to be examined is therefore not whether new aid was granted to Geodis, but whether the conditions in which the takeover of the assets of the Sernam group by Geodis were to take place constituted a correct application of the Sernam 3 Decision or, on the contrary, an unlawful application of that decision. Since a procedure for recovery may constitute an unlawful application of a decision on the recovery of aid, the Commission should initiate the formal investigation procedure if it has serious doubts in that regard.

46According to the Commission, the appellants’ claims are unfounded for two reasons. First, at the time the action for annulment was lodged, the Mory companies were in liquidation and were therefore no longer the competitors of any undertaking. Secondly, the annulment of the decision at issue is not of real interest in the context of an action for damages before the national court on account of the competitive disadvantage suffered by them in the past.

47The Commission contends, as a preliminary point, that the arguments advanced in the first and fourth places in the context of this ground of appeal relate not to the appellants’ interest in bringing proceedings but to their locus standi . Those arguments cannot, therefore, prove such an interest in bringing proceedings against the decision at issue.

48As to the remainder, the Commission considers that neither the action for recovery nor the action for damages brought before the national courts grants the appellants an interest in bringing proceedings before the EU Courts.

50In the alternative, the Commission considers that it is not in any way established that that action before the tribunal administratif de Paris is well founded and has the slightest chance of success under national law. In addition, it appears that, following the adoption of the Sernam 3 Decision, the national court in question found that it was moving towards the adoption of an order that there was no need to adjudicate. Once the Commission made a decision, as in the present case, declaring the aid at issue incompatible with the internal market and ordering the recovery thereof, the proceedings brought earlier before the national court would lose their purpose.

51As regards the second of those actions brought before the tribunal de commerce de Paris, the Commission contends that it does not suffice, in order to substantiate an interest in the annulment of a Commission decision, for an applicant before the EU Courts to rely on any action for damages capable of being lodged in the future or, as the case may be, which has already been lodged before a national court, on the ground that the annulment of that decision by the EU Courts would facilitate success in its action for damages, without showing, in addition, that that action is reasonably likely to result in the annulment of the Commission decision. In that context, although the General Court may not substitute itself for the national court in order to rule on the merits of the action for damages pending before the national court, it is nevertheless required to ensure that the applicants have established a real interest in applying for annulment of a Commission decision in order to substantiate that action for damages.

52In the present case, the Commission considers that such evidence is lacking. The General Court’s assessment of that point is correct, an assessment which, moreover, comes within the factual sphere not subject to review by the Court on appeal. The appellants lodged their application for damages only in response to the argument presented by the Commission in its objection of inadmissibility more than one year after the adoption of the Sernam 3 Decision. As regards the possibility of invoking an argument against Geodis based on the concept of French law known as ‘enrichissement sans cause’, it was presented for the first time in the appeal and is, on that ground, manifestly inadmissible. In any event, no serious arguments have been presented in support of that concept.

53Finally, the Commission considers that the General Court was correct to hold, in paragraph 53 of the order under appeal, that since the Mory companies are no longer active, they cannot suffer from any competitive threat, the consequences of which would be borne by Superga Invest.

Findings of the Court

54By their first ground of appeal, the appellants claim that the General Court committed a number of errors of law by holding that they had failed to establish their interest in bringing proceedings for annulment of the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU.

63It follows from the foregoing considerations that the line of argument put forward by the appellants in the context of the first ground in support of their appeal, in so far as it complains that the order under appeal held that the appellants did not have locus standi , must be rejected as being, in part, ineffective and, in part, unfounded.

64In the second place, it is necessary to examine the appellants’ first ground of appeal in so far as it is directed against the findings of the General Court, set out in paragraphs 36 to 51 of the order under appeal, by which it rejected the appellants’ line of argument that their interest in bringing proceedings resulted, in this case, from the action brought by the Mory companies, on 25 April 2007, before the tribunal administratif de Paris seeking recovery of the aid at issue, and the action for damages brought by them on 7 May 2013 before the tribunal de commerce de Paris seeking an order that the Sernam group and Geodis be held jointly and severally liable to reimburse the damage that those companies caused the appellants.

65In that regard, the General Court held, first, in paragraphs 39 and 40 of the order under appeal that the action for recovery of the aid at issue brought before the national court did not seek damages for the harm which the appellants claimed to have suffered.

66Secondly, the General Court, after noting, in paragraph 41 of the order under appeal, that the appellants had failed to bring any action for several years for damages for harm suffered as a result of the distortion of competition created by that aid, held, in paragraphs 42 to 49 of that order, that the action brought by the appellants before the tribunal de commerce de Paris, after the bringing of the action for annulment before the EU Courts, also did not grant them an interest in bringing proceedings before the latter, since they had failed to show that Geodis was likely to cause them harm, thereby giving them a basis for bringing an action for damages against the latter before the national court.

67In that regard, the General Court, first of all, held in paragraphs 44 and 45 of the order under appeal that, since the assets of the Sernam group were taken over on a date after the Mory companies’ composition with their creditors, that takeover could not be the cause of their compulsory liquidation and that, as a result, Geodis could not be held responsible for their poor financial situation. Next, the General Court stated, in paragraph 47 of that order, that it was also not established that Geodis could, merely on the ground that it had taken over the assets of the Sernam group, be held theoretically responsible under national law for the alleged harm which that group had caused to the appellants. Finally, in so far as the appellants referred to the damage which could be caused to them by Geodis taking over certain of the assets of the Sernam group without being required to repay the aid at issue, the General Court held, in paragraph 48 of that order, that since the Mory companies had ceased all economic activity since their liquidation they could not suffer any harm caused by the transfee.

71In this case, as is apparent, in essence, from paragraph 46 of the order under appeal, the harm alleged by the appellants is due to the fact that the Sernam group benefited, for 10 years, from aid which is unlawful and incompatible with the internal market, granted by the French Republic and the recovery of which was ordered by the Commission in the Sernam 3 Decision.

72By the decision at issue, the Commission informed the French Republic that that obligation to recover would not be extended to Geodis in the event that the latter took over part of the assets of the Sernam group, since, in the absence of economic continuity, it was not established that Geodis would actually benefit from the aid at issue.

73It follows from that that, as a result of the adoption of that decision, Geodis, which effectively took over part of the assets of the Sernam group, is not affected by that obligation to recover, since it cannot be regarded as a beneficiary of the aid at issue.

74As stated by the Advocate General in point 91 of his Opinion, that fact alone is capable of showing that the appellants have an interest in applying for annulment of the decision at issue, since the action for damages before the national courts, in so far as it seeks compensation for harm allegedly suffered by them as a result of the grant of the aid at issue, is based precisely on the premiss that Geodis must, as transferee, be regarded as the beneficiary of that aid.

77It is also irrelevant, contrary to what was stated by the General Court in paragraph 48 of the order under appeal, that the Mory companies had ceased all economic activity after their liquidation, since the damage alleged by the appellants, as the Commission itself acknowledged at the hearing, results precisely from the distortion of competition created by the grant of the aid at issue over a period during which it is agreed that the Mory companies carried out an economic activity on the market concerned and, therefore, were competitors of the beneficiary of that aid.

78For the same reason, it is irrelevant that the takeover by Geodis of certain assets of the Sernam group, since it took place after the date on which the Mory companies were put into administration, as noted by the General Court in paragraphs 44 and 45 of the order under appeal, was not the cause of those companies being put into compulsory liquidation.

82In that regard, the Commission is wrong to argue that the action brought by the appellants before the tribunal administratif de Paris is not capable of establishing the appellants’ interest in bringing proceedings before the EU Courts on the ground that that action seeks solely to obtain recovery of the aid at issue not from Geodis but from the Sernam group. It is clearly apparent from the documents before the Court that that action extended to the successive beneficiaries of the aid at issue. Since the appellants, moreover, referred expressly to that extension of their action in their written submissions before the General Court, it is necessary to reject the objection of inadmissibility raised by the Commission on the ground that that argument was not presented by the appellants in the proceedings before the General Court.

83Furthermore, while it is true that it cannot be ruled out that the adoption of the Sernam 3 Decision, in so far as it orders the recovery of the aid at issue, or the cessation of the economic activities of the Mory companies may, as the case may be, affect the appellants’ interest in bringing proceedings before the tribunal administratif de Paris, that fact is, by contrast, of no relevance whatsoever, contrary to what was asserted by the Commission, in particular at the hearing, to the interest of those appellants in bringing proceedings before the EU Courts, since, by its outcome, the action for annulment brought before those courts is capable of affecting the outcome of the action before the national court seeking recovery of the aid at issue.

85In the light of all the foregoing, it must be held that the General Court erred in law by holding that the appellants had failed to establish their interest in bringing proceedings for annulment of the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU.

86In those circumstances, the appellants’ first ground in support of their appeal should be declared well founded.

87The order under appeal must accordingly be set aside, and there is no need to examine the second ground of appeal put forward by the appellants in support of their appeal.

The action before the General Court

88Under Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision of the General Court. It may therefore itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

89In this case, the Court considers that it has the information necessary to rule definitively on the objection of inadmissibility raised by the Commission during the proceedings at first instance.

90In the first place, it is necessary, for the reasons set out in paragraphs 74 to 85 of the present judgment, to reject that objection of inadmissibility in so far as it claims that the appellants have no interest in bringing proceedings.

101In this case, as is apparent from paragraph 72 of the present judgment, by the decision at issue, the Commission informed the French Republic that the obligation to recover aid which is unlawful and incompatible imposed on that Member State by the Sernam 3 Decision would not be extended to Geodis in the event that the latter took over part of the assets of the Sernam group, since, in the absence of economic continuity, it was not established that Geodis would actually benefit from that aid.

102Moreover, it follows expressly from paragraph 54 of the decision at issue that it does not apply to the reasonableness or otherwise of the investment carried out by Geodis, consisting of the takeover of part of the assets of the Sernam group and that, consequently, it did not prejudge the assessment of that investment by the Commission in the light of Article 107(1) TFEU.

103It follows that the aid which, under the decision at issue, cannot be recovered from the transferee of part of the assets of their initial beneficiary is specifically and exclusively the aid which was already the subject of the Sernam 3 Decision.

105It is not disputed that the Sernam 3 Decision was adopted by the Commission after the formal investigation procedure provided for in Article 108(2) TFEU.

106In those circumstances, the appellants can be regarded as individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU, if they show, inter alia, that their position on the market has been substantially affected by the grant of the aid at issue. By contrast, the mere fact that they might be regarded as interested within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible.

107In this case, the appellants claim that the Mory companies are individually concerned by the decision at issue, since, by not opening the formal investigation procedure, the Commission deprived those companies of procedural rights afforded them by Article 108(2) TFEU, in particular with a view to claiming that that institution lacks competence to adopt that decision. Moreover, the Mory companies have shown the existence of an interest in bringing proceedings. In addition, they participated in the administrative procedure which led to the adoption of the Sernam 3 Decision and they questioned the Commission the day before the adoption of the decision at issue concerning the legal basis that institution intended to rely on for that purpose. Furthermore, those companies are the sole parties to have brought an action before the French courts seeking an order that the French authorities must recover the aid at issue from the beneficiaries thereof and, in addition to Superga Invest, they have brought an action before those courts for compensation for damage suffered as a result of the grant of that aid.

108Moreover, the appellants claim, for the sake of completeness, that the competitive position of the Mory companies was substantially affected by the aid at issue. Those companies were even forced to cease their activities for reasons they consider are linked to the grant of that aid. As regards Superga Invest, it also suffered, as a shareholder of the Mory companies, from the anticompetitive effects of that aid, especially as it could itself decide to enter the market concerned.

109In that regard, it should be noted that, in accordance with the case-law referred to in paragraphs 62, 97 and 98 of the present judgment, the alleged infringement of procedural rights afforded the Mory companies by Article 108(2) TFEU, their interest in bringing proceedings and the active role they played in the context of the procedure which led to the adoption of the Sernam 3 Decision and the decision at issue are not capable, in the present case, of distinguishing them for the purposes of the fourth paragraph of Article 263 TFEU. As regards the fact that the appellants brought actions before the national courts seeking, first, an order that the French authorities must recover the aid at issue and, secondly, for compensation for the damage suffered as a result of the grant of that aid, it also cannot, as such, suffice to distinguish them for the purposes of that provision, since anybody could potentially bring such an action.

110Moreover, while the appellants claim, albeit on an alternative ground for the sake of completeness, that the competitive position of the Mory companies was substantially affected by the aid at issue, in particular in so far as those companies were forced to cease their activities, it must be held that, neither in their action at first instance, nor in the context of the present appeal, have they adduced evidence to substantiate that claim. In addition, they have failed to provide the Court with any information concerning the structure of the market at issue and their competitive position on that market. As regards Superga Invest, it is not disputed that it is not active on the market concerned and that it cannot, therefore, be classified as a competitor of the beneficiary of the aid at issue. Furthermore, since the Mory companies have not shown that their competitive position was substantially affected by that aid, Superga Invest may not derive locus standi in that regard on the sole basis of its status as shareholder of those companies.

111Consequently, none of the appellants may be considered to be individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU.

112Therefore, the objection of inadmissibility of the action for annulment brought by the appellants before the General Court, raised by the Commission during the proceedings at first instance, must be upheld in so far as that objection claims that the appellants have no interest in bringing proceedings and, therefore, that action must be dismissed as inadmissible.

Costs

113Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(2) of those Rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

114Since the appeal brought by the appellants has been upheld, but their action for annulment dismissed, each of the parties is to bear its own costs relating both to the proceedings at first instance and to the appeal.

On those grounds, the Court (Third Chamber) hereby:

1.Sets aside the Order of the General Court of the European Union in Mory and Others v Commission (T‑545/12, EU:T:2013:607 );

2.Dismisses as inadmissible the action for annulment brought by Mory SA, Mory Team and Superga Invest against Decision C(2012) 2401 final of the Commission of 4 April 2012 concerning the takeover of assets of the Sernam group as part of its composition with creditors;

3.Orders Mory SA, Mory Team, Superga Invest and the European Commission to bear their own costs relating both to the proceedings at first instance and to the appeal.

[Signatures]

( *1 ) Language of the case: French.