Legal Standing of Competitors

By: Phedon Nicolaides (State Aid Uncovered)

Any natural or legal person who is the addressee of an act of an EU institution can challenge that act before EU courts. This is a right that is conferred by Article 263 TFEU. However, it is not so easy to challenge Commission decisions on state aid. This is because such decisions are addressed to Member States. To initiate legal proceedings against a decision which is not addressed to them, natural or legal persons must show that that decision is of “direct and individual concern” to them.

Direct concern means that the legal rights of those persons are immediately affected by the Commission decision. Individual concern means that the decision affects them differently from anyone else. These two conditions combined together set a pretty high standard for proving legal standing.

Natural or legal persons can also initiate proceedings against “regulatory acts” which are of direct concern to them and do not entail implementing measures. This would be the case, for example, when the Commission approves a state aid scheme such as a tax measure that automatically applies without any prior need for application for state aid and approval of the application by the relevant authorities. In this case the standard of proof for legal standing appears to be lower.

On 30 June 2022, the Court of Justice, in case C-99/21 P, Danske Slagtermestre v European Commission, made an important distinction between proof of direct concern for procedural purposes and proof of direct concern for substantive purposes…