This article reviews two recent judgments dealing with the concept of state resources and the meaning of “interested party”, respectively.
On 8 June 2023, the Court of Justice clarified, by its judgment in case C-50/21, Prestige and Limousine SL, that purely regulatory measures may confer and advantage without, however, granting State aid.1
The Court was responding to a request for a preliminary ruling by a Spanish court which was adjudicating a dispute between car-hire companies and the municipality of Barcelona. The municipal authorities had adopted a measure according to which already licensed car-hire companies were required to obtain another licence by the Barcelona authorities before they could legally provide services in the city. In addition, the number of licences for car-hire companies was limited to 1/30th of the number of licences for taxis operating in Barcelona. The municipal authorities claimed that the measure was necessary to reduce pollution and congestion in the city and to maintain the viability of normal taxi services.
The referring Spanish court asked whether the measure constituted State aid and whether it infringed Article 49 TFEU which guarantees the right of establishment.
With respect to the question concerning Article 107(1) TFEU, the Court of Justice replied by examining solely whether there was a transfer of state resources. First, it recalled that “(53) the concept of aid includes not only positive services such as subsidies, but also measures which, in various forms, alleviate the charges which are normally included in an undertaking’s
budget and which, therefore, are not subsidies in the strict sense of the term, are of the same nature and have identical effects”.
“(54) Consequently, for the purposes of establishing the existence of State aid, a sufficiently direct link must be established between, on the one hand, the advantage granted to the recipient and, on the other, a reduction in the State budget, or even a sufficiently concrete economic risk of charges on it”.
“(55) In the present case, suffice it to note that it is in no way apparent […] that the legislation at issue […] involves the commitment of State resources.”
“(56) In particular, first, neither the requirement of an authorisation […] [of] the activity of ride-hailing services in the Barcelona agglomeration nor the limitation of the number of licences for such services to one thirtieth of the taxi service licences issued for that agglomeration appear to imply positive services, such as subsidies, for the benefit of companies providing taxi services or alleviate the charges that normally burden the budget of these companies.”
“(57) Second, those two measures do not appear to lead to a reduction in the State budget or to a sufficiently concrete economic risk of charges on it, which could benefit undertakings providing taxi services.”
Therefore, the Court of Justice concluded that “(58) Article 107(1) TFEU does not preclude legislation applicable to an agglomeration providing, first, that a specific authorisation is required to carry out the activity of ride-hailing services in that agglomeration, in addition to the national authorisation required for the provision of urban and long-distance ride-hailing services, and, second, that the number of licences for such services is limited to one thirtieth of the licences for taxi services issued for that agglomeration, provided that those measures are not such as to involve a commitment of State resources within the meaning of that provision.”
However, the Court went on to find the measure in question incompatible with Article 49 TFEU because it provided protection to taxi companies and because it had only a random link with the objective of reducing pollution and congestion.
The findings of the Court would have been different if the licences were free but tradable or if the municipal authorities charged a fee at market rates for the issuing of the limited number of licences. In the former case, the Court would have probably found that the state lost potential revenue. In the latter case, the analysis would have been more complicated as the case law permits Member States not to charge market rates for permits or licences that are linked to regulatory measures which are applied on the basis of objective criteria.
On 7 June 2023, the General Court delivered its judgment in case T-322/22, Unsa Énergie v European Commission.2 Unsa Énergie, a trade union representing employees of Électricité de France [EDF], sought the annulment of the decision of the Commission, which rejected its complaint against authorised France aid measures in the electricity sector. The union argued that the aid measures harmed its interests. The Commission rejected the complaint because it considered that Unsa Energie was not an interested party in the meaning of Article 1 of Regulation 2015/1589
The General Court, first, recalled that under Article 1(h) of Regulation 2015/1589, interested party means any Member State and any person, undertaking or association of undertakings whose interests might be affected by the grant of aid, in particular the beneficiary of the aid, competing undertakings and trade associations. It is, in other words, an indeterminate group of addressees. [paragraph 17 of the judgment]
However, an undertaking which is not in direct competition with the beneficiary of the aid may be classified as an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589, provided that it claims that its interests may be affected by the grant of aid, which requires that undertaking to demonstrate, to the requisite legal standard, that the aid is likely to have a specific impact on its situation. Therefore, the status of ‘interested party’ does not necessarily presuppose a competitive relationship with the beneficiary of the aid. [para 18]
In other words, the General Court did not rule out that trade unions could be regarded as interested party if they could demonstrate that they would be affected by the aid in question and that the aid would have a concrete impact on them. [para 19]
Then the General Court examined the Commission decision which had found the union not to be an interested party on the grounds that it was not a competitor of the beneficiary of the aid. More importantly, the Commission considered that the alleged harm to the interests of the union had no direct or certain link with the aid measure. In particular, the reduction in the staff of EDF did not the result from the aid measure, but from an autonomous decision of EDF. [para 21]
The General Court also examined and rejected other arguments concerning alleged harm to EDF and its market position. The Court viewed those arguments speculative and not capable of proving the alleged harm caused by the French measures in question.
On the basis of the reasoning explained above, the General Court rejected the appeal of Unsa Énergie
Therefore, a person or organisation may object to the granting of State aid for ideological, moral, social or economic reasons, but it does not have standing to bring legal action against Commission decisions if it cannot demonstrate that the aid harms its interests.