In its order of 21 January 201136, the General Court dismissed the action of Vtesse Networks against the Commission decision37 which found that the tax treatment of British Telecommunications (‘BT’) did not constitute state aid because Vtesse Networks was not individually concerned by that decision.
Vtesse Networks launched an action against the Commission decision concerning the question whether the fiscal treatment of BT constituted state aid. The case relates to the land tax on real estate applicable to British undertakings. That land tax is also applicable to the telecommunication infrastructure held by those undertakings. The tax can be calculated on four different grounds. For the telecom networks held by BT, the Valuation Office Agency (‘VAO’), i.e., the body responsible of calculating the tax, used the method of revenues and costs. According to Vtesse Networks this method of calculation was beneficial for BT and therefore, it lodged a complaint with the Commission. The Commission, however concluded that the method of revenues and costs was the best way to calculate the land tax and furthermore was calculated in a correct manner and therefore held that there is no state aid. Vtesse Networks launched an action for annulment against this decision.
The General Court started off by stating that in accordance with Article 113 of the Rules of Procedure, the General Court can at each moment, ex officio, rule on the admissibility of the case. The General Court reminded that a person can only bring an action against a decision addressed at another person if this person is directly and individually concerned by that decision. For state aid decisions that closes a procedure opened according to Article 108(2) TFEU, case law recognised that apart from the beneficiary of the decision, the competitors of the beneficiary who played an active role in the administrative procedure can demonstrate that they are individually and directly concerned by the decision on condition that they can prove that their position on the market is substantially affected by the state aid measure that is the object of the decision. Therefore, being a competitor is not sufficient, but instead, the competitor has to demonstrate that the effect on its market position is of such a nature that it is in such a factual situation that it is individualised in the same way as the addressee of the decision.
The General Court then continued to examine whether Vtesse Networks can satisfy this test. The General Court started by noting that it is not disputed that Vtesse Networks played an active role in the administrative procedure as the investigation began with a complaint by Vtesse Networks. Furthermore, it is clear that Vtesse Networks is a competitor of BT. However, those two circumstances are not sufficient to demonstrate that it is individually and directly concerned by the decision. The General Courts continued and noted that there are 35 competitors of BT that are similar to Vtesse Networks. The General Court judged that Vtesse Networks did not provide any elements in demonstrating that it was affected in a different way than those other competitors nor that the decision was capable of infringing the lawful rights of Vtesse Networks and thus affecting Vtesse position on the market substantially. Therefore, Vtesse Networks did not demonstrate that it is individually concerned by the decision and thus the action was dismissed as inadmissible.