Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This action was brought by the Commission against the French Republic under Article 169 of the EEC Treaty. In certain respects the complaint made against the French Republic is undoubtedly innovatory. The Republic is alleged to have encouraged a public body (the Caisse nationale de crédit agricole/National Agricultural Credit Fund/, hereinafter referred to as the Fund) to pay a grant to farmers in straightened economic circumstances and, therefore, to have failed to fulfil its obligations under Article 5 of the EEC Treaty, having regard to the aims of the Treaty in relation to competition and in particular Articles 92 et seq.

2. In that summary of the facts one event in particular stands out, namely the Commission's change of opinion as to the nature of the French grant in the course of the procedure under Article 93. Clearly shaken by the French Government's objections, but nevertheless convinced that the contested aid was unlawful, the Commission believed that it had solved the problem by coining a new expression to define that aid: a measure having an effect equivalent to State aid incompatible with the common market. It is easy to see how the Commission reached that conclusion. I think it is possible to reconstruct their thought processes as follows: Article 92 et seq. expressly prohibits only State aid. That does not mean, however, that the Treaty may be construed as authorizing conduct on the part of the States which in formal terms cannot be described as aid, but which has the same effect as aid. It is therefore necessary to estabish that such conduct is prohibited by the general principles of the Treaty and that is not too difficult to do. It is sufficient to refer to Article 5 which requires States to abstain from ‘any measure which could jeopardize the attainment of the objectives of... [the] Treaty.

3. The comments which I have made hitherto lead logically to the conclusion that the action lodged on 23 December 1983 lacks foundation. Let us nevertheless examine a hypothetical situation. Let us assume that to avoid delay the Court reclassifies the conduct contested in the action and describes it as aid in the strict sense. In my view that is possible. A court may not go beyond the application, but it may attribute to a fact a legal label which is different to that given it by the applicant. In any event it is worth exploring the consequences of such reasoning.

4. It is therefore quite clear that the solidarity grant is aid within the meaning of Article 92. Does it follow that France can be challenged on that basis within the context of this action? To answer that question it must first be established whether, in bringing the action under Article 169, the Commission has complied with the procedural rules imposed by the Treaty in respect of aid. The answer to that question must be that it has not.

5. For the abovementioned reasons I propose that the Court declare the action brought on 23 December 1983 by the Commission of the European Communities against the French Republic inadmissible. As the Commission has been unsuccessful in its claims, it must be ordered to pay the costs.

1 Translated from the Italian.