Order of the EFTA Court in Case E-8/13 Abelia v EFTA Surveillance Authority

On 29 August 2014, the Court dismissed an action brought by Abelia against a d decision of the EFTA Surveillance Authority, ESA, No 160/13/COL of 24 April 2013. The decision concerned alleged State aid granted to lessors of premises to public schools.

Abelia is a trade and employers association that is part of Næringslivets Hovedorganisasjon, NHO, the Confederation of Norwegian Enterprise. It represents 1 250 member companies, including a number of private schools.

In the contested decision, ESA established, without initiating the formal investigation procedure provided for in Article 1(2) of Part I of Protocol 3 SCA, that the contested provisions of the Norwegian VAT Act and VAT Compensation Act did not have the effect of granting State aid, within the meaning of Article 61(1) EEA, to public schools or the lessors of premises to public schools.

The Court considered two separate issues concerning the admissibility. The first concerned the situation of the applicant’s counsel in light of Article 17(2) of the Statute of the Court. As it stipulates, parties other than any EFTA State, ESA, the European Union and the Commission must be represented by a lawyer. Such a lawyer must be authorised to practice before a court of an EEA State. The Court analysed the relationship between Abelia and the two lawyers that signed the application. As regards the first lawyer, her independence was not considered to be affected by her position as head of the Business Legislation Department of NHO since the Court had not been provided with information demonstrating that the interests of NHO were largely the same as those of the applicant. As regards the second lawyer, she was also considered sufficiently independent from Abelia as an employee of an independent law firm, from where she continued to receive her salary regardless of a contract between NHO and the law firm for the temporary provision of her services. As a result, the Court considered the applicant to be properly represented before the Court.

The second issue of admissibility concerned the applicant’s legal interest in bringing the action for annulment. The 2013 decision was addressed to Norway. Hence, the Court assessed whether it was of individual and direct concern to the applicant. As the Court pointed out, pursuant to Article 1(h) of Part II of Protocol 3 SCA the term «interested party» covers an indeterminate group of persons. An undertaking that is not a direct competitor of the aid beneficiary may be considered as an interested party if it demonstrates that its interests could be adversely affected by the grant of this aid. Abelia considered itself an interested party since the ESA’s decision not to initiate a formal investigation procedure in which such interested parties may participate was of direct and individual concern to it. It argued to have standing on the basis of representing undertakings active in the same markets as public schools and whose competitive position in those markets was affected. Abelia did not contend that it represented lessors of real estate that might have been affected by the alleged unlawful aid to lessors of premises to public schools.

The Court established that the applicant had failed to point to any specific instances where its members found themselves in a relationship of rivalry with the beneficiaries of the alleged State aid, that is, lessors of premises to public schools. Therefore, Abelia lacked legal standing to challenge the contested decision by its plea alleging the existence of doubts or serious difficulties concerning the alleged State aid. Moreover, the Court stressed that the issue the applicant took at the oral hearing with the part of ESA’s decision concerning its assessment of possible aid to public schools was a new plea in law that could not be introduced at that stage.