Admissibility of appeals lodged by competitors after the Montessori judgment – La possibilité d’une île

Any person who wishes to challenge a Commission decision authorising the granting of aid to a competitor must be directly and individually concerned by such aid, in accordance with Article 263(4) TFEU. According to the case law, this is particularly the case if the market position of this person is ’substantially affected’ by the aid in question, which, judging by the success rate for this type of action, is similar to a probatio diabolica. At the same time, access to the EU courts for competitors of aid scheme beneficiaries seems to have been greatly facilitated, especially since the Montessori judgment. Following an analysis of the admissibility rules applicable to appeals lodged by competitors, depending on whether they contest a decision on an individual aid or on an aid scheme, this article reflects on the existing gap between these two admissibility regimes, its legitimacy and the possibility of a form of convergence in the future, in order to achieve a more effective judicial protection of the European litigant.

1. The possibility of challenging the legality of acts of a public authority is one of the essential attributes of the rule of law. It reflects the submission of such an authority to the rule of law. [1] The concept of the rule of law includes the principle of effective judicial protection, which enables litigants to assert the rights that they derive from the legal order. [2] This principle has been reaffirmed in Article 47 of the Charter of Fundamental Rights of the European Union with regard to the rights guaranteed by EU law. 2. The action for annulment instituted by Article 263 of the Treaty on the Functioning of the European Union (TFEU) is at the heart of the European legal order, allowing direct control of the legality of the acts of the Union before the Court of Justice of

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  • Mayer Brown (Brussels)
  • General Court of the European Union (Luxembourg)


Aymeric de Moncuit, Valérie Noël, Admissibility of appeals lodged by competitors after the Montessori judgment – La possibilité d’une île, November 2019, Concurrences N° 4-2019, Art. N° 92111, pp. 222-230

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