T-351/02, Deutsche Bahn v. Commision

The Court of First Instance today held that a letter from a Commissioner stating that it will not initiate proceedings under Article 88 is a challengeable act within the meaning of Article 230 EC.

The case concerned a letter from Commissioner Loyola de Palacio stating that a tax exemption for aviation kerosene is not considered to raise a State aid and that therefore, the Commission had no intention to initiate a State aid investigation procedure under Article 88 of the EC Treaty.

The Commission argued that the letter of did not constitute a challengeable act, as it merely informed the applicant of a clear legal position and therefore had no legal effect.

The Court of First Instance, referring to the case law mentioned below, reiterated that only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about
a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC.

The form in which an act or decision is cast has no bearing on the right to challenge them by way of an application for annulment.The Court must look at its substance in order to ascertain whether it is an act within the meaning of Article 230 EC.

The Court held that in the present case the Commission took a clear and reasoned position by stating that the measure at issue did not constitute aid and therefore essentially took a decision (within the meaning of Article 4(2) Regulation No 659/1999).

The Commission is not entitled to exclude such letter from the review of the Community judicature by declaring that it did not take such a decision.

The Court held that it was irrelevant that the letter was not based on a definitive decision by the college of Commissioners.

Such a decision could only have been adopted if Ms Loyola de Palacio had submitted a proposal to that end to the college, but the letter showed that she had no intention of doing so, simply because she was of the opinion that the complaint could not be investigated under Article 87 EC and Regulation No 659/1999 and therefore could not be the subject of any decision of the college.

Text of judgement

Relevant case law: