Here we go again…. Two more judgments of the Court of Justice on the issue of standing and the “regulatory acts which do not entail implementing measures” business in Article 263 (4), third limb, TFEU. On this, se our previous posts here, here and here.

In its judgments of 27 February 2014 in Case C-132/12 P Stichting Woonpunt and others v Commission, unpublished, and Case C-133/12 P Stichting Woonlinie and others v Commission, unpublished, the Court of Justice did two things, one of which is really interesting.

1. First, it held that even if the plaintiffs did not meet all the conditions required for their actions to be admissible under the amendment to Article 263 (4) TFEU made by the Lisbon Treaty which relaxed the conditions of admissibility of actions for annulment brought by natural and legal persons against acts of the EU institutions, the General Court made a mistake in law by failing to examine whether they did or not. And that is an interesting insight about how that new, relaxed rule on standing should be applied.
2. Second  – not so exciting – it held that the actions for annulment in these cases were admissible according to the traditional test of individual and direct concern in Plaumann.

Let’s see in more detail.

Before doing so, though, it is necessary to grasp the basic facts.

The plaintiffs in both cases are housing corporations in the Netherlands affectionately known as “wocos”. The wocos are not-for-profit bodies whose mission is to acquire, build and rent out dwellings aimed mainly at underprivileged individuals and socially disadvantaged groups. They also build and lease of apartments at higher rents or sell them on the open market. The Commission began an investigation into state aids given to the wocos. During that investigation, the Dutch authorities offered commitments to the Commission to amend the state aid schemes for the wocos. The Commission concluded its investigation by adopting a decision that declared the different aid measures to be compatible with EU law given those commitments made by the Dutch authorities.

The plaintiffs brought two actions before the General Court to annul the Commission decision because they did not like the effects of the commitments made by the Dutch authorities and which the Commission had decided were necessary to make the aid schemes compatible with EU law.

In both cases, Case T-203/10 Stichting Woonpunt and others v Commission and Case T-202/10 Stichting Woonlinie and others v Commission, the General Court dismissed the actions as inadmissible by orders dated 16 December 2011. In both Orders, the General Court held that the plaintiff wocos were not individually concerned by the contested decision. The wocos then appealed to the Court of Justice.

In its judgments, the Court of Justice first looks into whether the actions should have been declared admissible by the General Court pursuant to Article 263 (4), third limb, TFEU.

It recalls that the fourth paragraph of Article 263 TFEU provides, as a result of the amendment by the Lisbon Treaty, for two situations in which natural or legal persons are accorded standing to institute proceedings against an act which is not addressed to them. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (Case C‑274/12 P Telefónica v Commission [2013] ECR, paragraph 19 which we noted up here).

Then the Court of Justice points out that the General Court in the orders under appeal, with a view to declaring inadmissible the actions brought by the appellants, limited itself to an examination of the condition that they must be individually concerned, within the meaning of the second limb of the fourth paragraph of Article 263 TFEU. The General Court failed to carry out an examination as to the admissibility of that action in the light of the other, less stringent, conditions set out in the third limb of the fourth paragraph of Article 263 TFEU, and the examination of which was in no way prejudiced by the finding that the appellants were not individually concerned.

As a result of that failure, the Court of Justice held that the General Court had erred in law. These judgments mean that the General Court must examine that aspect of admissibility of its own motion (sua sponte).

That error would not result in the orders being quashed if it transpires that the appellants’ actions did not satisfy the conditions governing admissibility set out in the third limb of the fourth paragraph of Article 263 TFEU. In these cases, the Court of Justice held that those conditions were not satisfied because the Commission decision did in fact entail implementing measures taken by the Dutch authorities.

Accordingly, independently of the question whether the contested decision is a ‘regulatory act’ within the meaning of the aforementioned provision, since the appellants’ action does not satisfy the conditions governing admissibility set out in the third limb of the fourth paragraph of Article 263 TFEU, the error of law which the General Court made in the orders under appeal in failing to assess the admissibility of that action also in the light of those other conditions is of no consequence.

Secondly, the Court of Justice examines whether the General Court was correct in finding that the wocos were not individually concerned by the contested decision and thus their actions were inadmissible according to the traditional Plaumann rule.

The Court of Justice recalls that that the mere possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to those persons as long as that measure is applied in accordance with an objective legal or factual situation defined by the act in question (see Telefónica v Commission, paragraph 47).

It also recalls, however, that where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraphs 71 and 72 and the case-law cited).

The Court of Justice held that, on the facts found by the General Court, the wocos did belong to a closed circle of operators, a fact which distinguishes them in relation to certain aspects of the state aids measures considered in the Commission decision. As a result, the orders should be set aside to the extent that they held that the wocos were not individually concerned by certain aspects of the contested Commission decision.

Finally, the Court of Justice went on to decide for itself on the admissibility of the actions for annulment before sending the cases back to the General Court to be decided on the substance. It held that the actions were indeed admissible because the wocos were directly concerned by the contested Commission decision. It is the Commission’s decision recording the commitments made by the Member State that renders those commitments binding and the Dutch authorities were left with no discretion when implementing the decision.