CFI, 2nd chamber, extended composition, April 23, 2007, No T-30/03

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),

Background to the dispute

1 On 1 July 1988 the Kingdom of Denmark adopted Law No 408, which entered into force on 23 August 1988, establishing a Danish International Register of Ships ('the DIS register'). That register was in addition to the ordinary Danish register of ships ('the DAS register'). The DIS register is intended to combat the flight from Community flags to flags of convenience. The main advantage of the DIS register is that shipowners whose vessels are registered in it are allowed to employ third-country seafarers on those vessels and pay them wages on the basis of their national laws.

2 On the same date the Kingdom of Denmark adopted Laws Nos 361, 362, 363 and 364, which entered into force on 1 January 1989, introducing various fiscal measures relating to seafarers employed on board vessels registered in the DIS register ('the fiscal measures'). In particular, they were exempted from income tax, whereas in the context of the DAS register they were subject to that tax.

3 On 28 August 1998 the Specialarbejderforbundet i Danmark (SID) (General Workers' Union in Denmark, 'the applicant') lodged a complaint with the Commission against the Kingdom of Denmark relating to the fiscal measures, arguing that they were contrary to the Community guidelines on State aid to maritime transport (OJ 1997 C 205, p. 5) and hence to Article 87 EC.

4 On 13 November 2002 the Commission adopted Decision C(2002) 4730 final ('the contested decision'), in which it decided not to raise any objections 'to the fiscal measures that have been applied since 1 January 1989 to seafarers on board vessels registered in Denmark in either the DAS or the DIS register, considering that the arrangements constitute State aid but that they were or still are compatible with the common market in accordance with Article 87(3)(c) EC' (contested decision, point 46, second indent).

Procedure and forms of order sought by the parties

5 By application lodged at the Registry of the Court of First Instance on 30 January 2003, the applicant brought an action for annulment of the contested decision.

6 By separate document lodged at the Registry of the Court on 17 March 2003, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance. The applicant submitted observations on the plea of inadmissibility on 16 May 2003.

7 By order of 18 June 2003, the President of the Second Chamber (Extended Composition) of the Court of First Instance, after hearing the parties, gave leave to the Kingdom of Denmark and the Kingdom of Norway to intervene in support of the Commission. The interveners waived submission of a statement limited to the question of admissibility.

8 Noting, first, that the present application is directed against a decision of the Commission, taken without initiating the formal review procedure provided for in Article 88(2) EC, which on the basis of Article 88(3) EC declared aid to be compatible with the common market (a 'decision not to raise objections'), and, second, that on the one hand in its plea of inadmissibility the Commission did not mention the line of case-law following from the judgment of the Court of Justice in Case C-198-91 Cook v Commission [1993] ECR I-2487, paragraph 23, ('the Cook case-law') on the admissibility of applications brought against decisions of that kind and that on the other hand by its appeal in Case C-78-03 P Commission v Aktionsgemeinschaft Recht und Eigentum the Commission was asking the Court of Justice to rule on the scope of that case-law, the President of the Second Chamber (Extended Composition) of the Court of First Instance, after hearing the parties, by order of 16 February 2005 stayed the proceedings in the present case pending the Court of Justice's decision in Case C-78-03 P.

38 In the third place, the applicant has not shown that its own interests as a negotiator were liable to be directly affected by the aid in question.

39 In this respect, it should be recalled that in Van der Kooy and Others v Commission and CIRFS v Commission, paragraph 18 above, the applicants were able to rely on an altogether special, indeed exceptional, position, as having negotiated and signed the agreement establishing the tariff that constituted aid and having participated closely in the procedure before the Commission (Van der Kooy and Others v Commission, paragraphs 21 to 24, and Case C-106-98 P Comité d'entreprise de la Société française de production and Others v Commission [2000] ECR I-3659, paragraph 43) or as having been the Commission's interlocutor with regard to the definition of the discipline concerning aid in the sector in question (CIRFS v Commission, paragraphs 29 and 30, and Case C-106-98 P Comité d'entreprise de la Société française de production and Others v Commission, paragraph 44).

40 In the present case, the mere fact that the applicant made a complaint to the Commission against the aid at issue does not mean that it is distinguished individually. Furthermore, even though the applicant may have been one of the negotiators of the collective agreements for seafarers on board ships registered in one of the Danish registers and as such have played a part in the machinery for passing the aid on to shipowners, the applicant has not shown that it negotiated the drafting of the Community guidelines on State aid to maritime transport, relied on in the present case, with the Commission or the adoption of the fiscal measures with the Commission or the Danish Government.

41 It follows from all the foregoing that neither the applicant nor its members are individually concerned by the contested decision.

42 The application is therefore inadmissible for want of a legal interest in bringing proceedings as defined in Article 230 EC.

Costs

43 Under 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. Since the applicant has been unsuccessful, it must be ordered to pay the Commission's costs, as applied for in the latter's pleadings.

44 Under Article 87(4) of the Rules of Procedure, Member States and institutions which intervene in a case are to bear their own costs. The Kingdom of Denmark and the Kingdom of Norway must therefore bear their own costs. The other parties must bear their own costs in connection with intervention.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to bear its own costs and to pay those of the Commission.

3. All the parties are ordered to bear their own costs relating to the interventions.