Case T-238/14 EGBA, RGA v Commission (General Court, 26 April 2016), ECLI:EU:T:2016:259

Key points

  • The name of a measure is irrelevant as to its scope of application, thus a Commission decision can be of general application and thus be a ‘regulatory act’ under paragraph 4 of Article 263 TFEU

Facts

  • The French government enacted a levy on online horse betting agents, with the proceeds of the levy going to subsidise the horse racing industry
  • EGBA and RGA are associations of European online betting agents, which sought the annulment of the decision under Article 263 TFEU on the ground that it amounted to illegal state aid
  • The Commission disputed the admissibility of the challenge under paragraph 4 of Article 263

Issue

  • Did the decision fall under the second possibility in paragraph 4 as a regulatory act not requiring implementing measures in national law?
  • Or did the decision fall under the third possibility in paragraph 4 as an act of direct and individual concern to the applicants?

Ruling

  • The claim is inadmissible

Judgment

First possibility

  • It is clear that the decision was addressed to the French government and not the applicants

Second possibility

  • The decision was a regulatory act
    • ‘ The concept of ‘regulatory act’ within the meaning of the fourth paragraph of Article 263 TFEU must be understood as covering any act of general application, with the exception of legislative acts’
    • ‘In the present case, it is common ground that the contested decision does not constitute a legislative act. It is therefore necessary to determine whether it is of general application.’
    • ‘in order to determine the scope of a measure, the Courts of the European Union should not look merely at the official name of the measure but should first take account of its purpose and its content. Accordingly, a decision which is addressed to a Member State is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract’: [32]
    • The levy ‘produces legal effects with regard to a category of persons envisaged generally and in the abstract, in particular online horse-race betting operators, and applies to situations determined objectively’
  • However, the decision entails implementing measures in national law
    • The decision does not specify consequences on parties affected
    • However, amendments to the French Tax Code were made to implement it

Third possibility

  • The decision was not of individual concern to the members of the applicants
    • It was argued that the levy disadvantages new entrants to the French online betting market in favour of the dominant players
    • However, ‘the mere fact that a measure such as the contested decision may influence to some extent the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the beneficiary of the aid cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure’: [58]
  • The decision was not of individual concern to the applicants themselves
    • ‘The applicants maintain that EGBA has the status of an interested party on the ground that it submitted comments during the formal procedure before the Commission.’
    • ‘In that regard, it should be borne in mind that, if an applicant calls into question a decision appraising the aid taken at the conclusion of the formal investigation procedure, it cannot be inferred from the mere participation of an applicant in the administrative procedure that it has locus standi