Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

I —. By way of introduction to my opinion I consider it necessary to recall the previous steps in the procedure since in the present case their chronological order is of decisive importance.

(1). On 27 May 1970 the Belgian Government, through its Permanent Representatives accredited to the European Communities, notified the Commission that the Société Nationale des Chemins de Fer Belges (the Belgian National Railway Company, hereinafter referred to as the SNCB) intended to lodge a claim with the Sute from which it holds the concession for financial compensation for the economic disadvantage which it allegedly suffered by reason of the application of through international railway tariffs for goods covered by the ECSC Treaty.

(2). At this point it is necessary again to make a legislative detour in order to recall that on 20 May 1975 the Commission adopted a decision on the improvement of the situation of railway undertakings and the harmonization of rules governing financial relations between such undertakings and States, Article 13 of which states:

(3). On 9 October 1975 the Commission wrote, in the name of one of its Members, to the Belgian Minister for Foreign Affairs, stating that it had taken note of the attitude of the Belgian Government (as set out in the letter of the Permanent Representation of 29 November 1974) which the Commission summarized as follows:

(4). In the meantime, the procedure pursuant to Article 93 (2) followed its normal course and terminated in a decision adopted by the Commission on 4 May 1976on aid from the Belgian Government to the Société Nationale de Chemins de Fer Beiges (SNCB) for through international railway tariffs for coal and steel.

II —. I apologize for taking the Court through the ins and outs of this procedure, but I think that the subsequent passage of my opinion will thereby be eased.

1. The Belgian Government begins by describing the Commission's application as inadmissible, but without emphasizing this point overmuch. It maintains that the types of compensation concerned in Article 2 (5) of Regulation No 1191/69 and Article 3 (2) and Article 4 of Regulation No 1107/70 do not fall within the scope of Article 77 of the Treaty, which states:

2. The Belgian Government does not maintain that it has complied with that decision. Likewise it does not complain that the Commission did not dearly indicate to it the measures which it was required to take in order to comply with the operative part of the decision or that it did not prescribe a time-limit therefor or that it reacted only half-heartedly to the alleged failure to act. The period of three months imposed in the decision of 4 May 1976, within which the Belgian Government was required to terminate the aid in question, might well be considered superfluous since that aid could not be implemented after the point when the Commission initiated the procedure under Anide 93 (2), other than by resorting to the exceptional procedure provided for in the third subparagraph of Article 93 (2). However, the concession of such a period can be explained by the fact that the aid in question had in the meantime been establishedde facto and that the Commission did not wish to lay itself open to certain criticisms. The period was in any case justified if the Belgian Government opted for the alternative with which it was presented in the decision and, in any case, it does not raise a complaint on this point.

3. The Belgian Government relies, finally, upon an argument which it did not submit at any ume prior to the adoption of the Commission decision of 4 May 1976, namely that, even if the aid which was granted were incompatible with the common market within the meaning of Article 92 (1), it is appropriate to apply Article 90 (2) which states that Undertakings entrusted with the operadon of services of genera] economic interest … shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.

III —. My remaining comments can be brief.

1. Whilst the Commission considers that the aid can be granted only pursuant to Article 4, the Belgian Government has granted and continues to grant that aid pursuant to Article 3 (2) of Regulation No 1107/70 as compensation for tariff obligations; it considers that it is a simple question of the interpretation of Regulation No 1107/70, neither more nor less. However, the classification of the aid in question on the basis of Regulation No 1107/70 is not merely a simple question of interpretation. Such classification affects both the procedure which governs the granting of the aid and its legal status: if it comes under Article 3 (2) the procedure of Article 93 (3) applies. If it comes under Article 4 it is exempt from that procedure, with the consequences thereby entailed: the Government has merely to notify the Commission at the beginning of each year of its intention to grant the aid and then, after the end of the financial year, confirm that it has carried out its intention. The Commission may criticize the grant or improper application of that aid only on certain conditions which apply to existing systems of aid. The Belgian Government had only to opt for this latter classification, as permitted by the decision of 4 May 1976. However, a fundamental difference follows from this: in the former case the aid cannot be paid before the final decision of the Commission; in the latter case it is provisionally valid.

2. The Belgian Government maintains that the charge entailed by the application of the Agreement of 1955 constitutes a public service obligation of a tariff nature which is not covered by Article 2 (5) of Regulation No 1191/69.

I am of the opinion that the Court should rule that the Belgian Government, by its failure to suspend the grant of the aid to which objection was made in the Commission decision of 4 May 1976, failing the institution of any proceedings against that decision or the submission of any application pursuant to the third subparagraph of Article 93 (2) and in the absence of any amendment to the Agreement of 21 March 1955 and to any regulation of the Council adopted on the basis of Article 94 (apart from Regulation No 1473/75 of 20 May 1975 which makes provision for exemption from the procedure laid down in Article 93 (3) only for the categories of aid referred to in Article 4 of Regulation No 1107/75, in the version amended by that Regulation), has failed to fulfil its obligations under Article 93 (3) of the Treaty and the said decision of the Commission.

1 Translated from the French