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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> NDSHT v Commission (State aid) [2009] EUECJ T-152/06 (09 June 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/T15206.html Cite as: [2009] EUECJ T-152/6, [2009] EUECJ T-152/06 |
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(Action for annulment State aid Regulation (EC) No 659/1999 Complaint by a competitor Letters from the Commission to a complainant Existing aid Non-actionable measure Inadmissibility)
In Case T-52/06,
NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB, established in Stockholm (Sweden), represented by M. Merola and L. Armati, lawyers,
applicant,
Commission of the European Communities, represented by T. Scharf, acting as Agent,
defendant,
APPLICATION for the annulment of the decision contained in the Commission's letters to NDSHT of 24 March and 28 April 2006, relating to a complaint concerning allegedly unlawful State aid granted by the City of Stockholm to Stockholm Visitors Board AB (Case C-178/04 Alleged State aid to SVB AB),
composed of V. Tiili, President, F. Dehousse and I. Wiszniewska-Białecka (Rapporteur), Judges,
Registrar: C. Kantza, Administrator,
having regard to the written procedure and further to the hearing on 1 July 2008,
gives the following
Background to the dispute
'EUROPEAN COMMISSION
Competition DG
State Aid I: Cohesion and competitiveness
The Director
...
Subject: C-178/2004 Alleged State aid to SVB AB
...
I would refer to your letters of 23 September 2004, 22 December 2004, 10 January 2005, 19 April 2005 and 14 February 2006 concerning the abovementioned complaint.
I would like to inform you that, on the basis of the available information, the competent services of the Directorate-General for Competition have reached the conclusion that there are not sufficient reasons for continuing the investigation of your complaint. As you are aware, we received from the Member State concerned a rather extensive amount of information by letters and in meetings. All facts and circumstances have been examined closely and analysed. The complaint of your client was taken very seriously and we have done all the necessary possible to retrieve a violation of Article 87(1) of the EC Treaty.
According to our analysis, the Stockholm Card and the hotel bookings are (with the exception of the inclusion of parking spaces in the Stockholm Card) carried out on market conditions. These activities are thus not financed from State aid within the meaning of Article 87(1) of the EC Treaty. As regards the use of certain parking spaces for free, arguably there is no affectation on trade, or even if there is, such aid has been included in the Stockholm Card since well before Sweden joined the European Union in 1995 and would thus constitute existing aid. Moreover, this service is since 1 January 2006 no longer included in the Stockholm Card.
With respect to other activities (the provision of tourism information, etc.), it appears as if these are covered by the rules on Services of General Economic Interests (SGEI). Cross-subsidisation in favour of economic activities does not seem to occur. In case the compensation for the SGEIs would be classified as State aid, such aid would nevertheless have been provided under the same conditions since well before 1995 and would thus constitute existing aid.
In summary, the extensive investigations we have undertaken on this complaint suggest that we are in the presence of existing aid, and not illegal aid, which is in any case compatible with the common market. Since there are no grounds to institute the appropriate measures procedure provided for in Article 88(1) of the Treaty, we do not propose to take any further action on this matter.
Nevertheless, I would like to draw your attention on the fact that if you, in contrast to my services, are nevertheless convinced that there is illegal State aid involved, Article 87(1) of the EC Treaty has direct effect and creates therefore legal rights for citizens which national courts must guarantee. You could refer your case to those.
...'
'EUROPEAN COMMISSION
Competition DG
State Aid I: Cohesion and competitiveness
The Director
...
Subject: C-178/2004 Alleged State aid to SVB AB
...
I refer to your letter of 5 April 2006 concerning the abovementioned complaint.
As explained in my letter of 24 March 2006, the Commission services have reached the conclusion that there are not sufficient reasons for continuing the examination of your complaint. This is because the information received from the Swedish authorities by letters and in meetings does not indicate that the measure would constitute unlawful State aid.
Consequently, we cannot provide you with any decision by the Commission under Article 20 of Regulation No 659/1999, to which you refer in your letter.
...'
Procedure and forms of order sought
dismiss the objection of inadmissibility and declare the action admissible;
annul the decision contained in the contested letters;
order the Commission to open the formal investigation procedure under Article 88(2) EC;
order the Commission to pay the costs.
dismiss the action as inadmissible or unsubstantiated;
order the applicant to pay the costs.
Law
Arguments of the parties
Findings of the Court
Costs
On those grounds,
hereby:
1. Dismisses the action as inadmissible;
2. Orders NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB to pay the costs.
Tiili |
Dehousse |
Wiszniewska-Białecka |
Delivered in open court in Luxembourg on 9 June 2009.
[Signatures]
* Language of the case: English.