Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court is to decide upon an application to declare a measure void lodged at the Court Registry on 18 September 1985. The French organization which brought the action — its official title is Comité de développement et de promotion du textile et de l'habillement (CDPTH), but it is also known as DEFl —is challenging Commission Decision 85/380 of 5 June 1985 whereby the Commission of the European Communities declared incompatible with the common market two aid schemes for individual projects in the textile and clothing sector provided for by Decrees Nos 82-1242 and 82-1243 as amended by Decrees Nos 84-389 and 84-390 (Journal officiel de la République française 1983, p. 301; 1984, p. 1651).

2. The Commission's objection rests upon two submissions, both relating to prerequisites for bringing an action, namely that DEFI has neither capacity to sue nor an interest in bringing the proceedings.

3. The second submission is supported by two arguments: (a) DEFI's interest in having the decision declared void is indistinguishable from the interest of the French State or is subsumed under it; (b) the decision is not of direct and individual concern to DEFI.

4. I should say at once that I do not find those arguments persuasive. In the first place, an examination of the rules governing the membership of the board would appear to justify the Commission's view that DEFI is merely a conduit. Apart from the points already mentioned, that view is supported by the following considerations: (a) the chairman and members of DEFI's governing board are appointed and may be dismissed by the competent Minister (Article 3 of Law No 78-654 and Articles 3 to 5 of Decree No 84-388); (b) the provisions governing the adoption of the governing board's internal rules and its decisions, which provide in particular that the grant of aid above a specified amount requires the approval of the government appointee and, where necessary, of the Minister (Articles 6, 7 and 10 of Decree No 84-388); (c) the supervisory powers conferred upon the State are exercised by an inspector in the case of decisions of an economic nature and by the Industry and Budget Ministers jointly for the purposes of the approval of the annual financial forecasts (Articles 8 and 9 of Decree No 84-388).

5. Finally, a few brief words on DEFI's contention that allowing the objection of inadmissibility would be tantamount to denying it all legal process. At the hearing, the Commission rightly observed that it is not correct to place on the same footing a decision declaring certain aid compatible with the common market and a decision declaring it unlawful. Persons who consider themselves adversely affected by a decision of the first type are fully entitled to judicial protection because the Treaty guarantees them protection against aid which distorts competition. It is not so with persons (including undertakings and trade associations) complaining of the latter type of decision because the Treaty does not guarantee, but at most tolerates State aid.

6. In the light of all the foregoing considerations, I propose that the Court declare inadmissible the application lodged on 18 September 1985 by the Comité de développement et de promotion du textile et de l'habillement against the Commission of the European Communities.

1 Translated from the Italian.