Case T‑395/04, Air One v. Commission

The Court of First Instance yesterday held that competitors have broad standing to start an Article 232 procedure when they allege that the Commission has failed to define its position on state aid.

On 22 December 2003,
Air one submitted a complaint to the Commission alleging that Italy granted unlawful state aid to its competitor Ryanair by reducing prices for Ryanair's use of airport and groundhandling services.

When, after almost a year, the Commission had still not defined its position on this complaint - despite several request by Air one - the Italian airline requested the Court to order the Commission to define its position without further delay. It argued that the Commission had failed to fulfil its obligations in the sense of
Article 232 EC.

The Commission inter alia argued that Air one did not have standing, as it had not demonstrated that it was directly and individually concerned by the decision that the Commission failed to adopt.

The Court first of all reiterated, referring to
Ladbroke and UPS Europe, that the Community judicature cannot issue directions to an institution in the context of an action based on Article 232 EC. It is competent only to determine whether there has been a failure to act, after which it is then for the institution concerned, pursuant to Article 233 EC, to take the measures necessary to comply with the order of the Court.

The Court rejected the argument of the Commission that for all actions against decisions concerning State aid the competitor must demonstrate that its interests have been substantially affected, in accordance with the requirements applying for admissibility of actions against decisions taken under Article
Article 88 EC (2).

The Court inter alia held that: “For the purposes of admissibility, it is sufficient to find that the applicant is a competitor of the recipient of the contested State measures insofar as those two undertakings operate, directly or indirectly, services providing scheduled air transport of passengers from or to Italian airports and, in particular, regional airports.” (para. 38)

On the merits, the Court however held that the duration of the investigation of the complaint was not unreasonable and hence dismissed the action.

Text of Judgment