Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The aid Whicil Deufil seeks lo show in this action as being compatible with the common market within the meaning of Article 92 of the EEC Treaty permitted it to finance a part of the investment costs which arose out of the purchase of equipment permitting the manufacture of both polyamide and polypropylene yarns and fibres.

2. Before considering each of those submissions, the aid at issue should be placed in its true context since the specific features of the market in which it was granted are decisive for the resolution of the dispute.

I — Application of Article 92 (1)

3. Deufil attempts first to argue that the aid at issue must be regarded as a general economic measure forming part of conjunctural policy within the meaning of Article 103 of the EEC Treaty.

4. The applicant proposes that the answer to that question should be in the negative and claims that in order for the aid to be prohibited, it would have to bring about a significant alteration in the conditions of competition and intra-Community trade. However, its share of Community production of polyamide was only 0.18% in 1984. With regard to its production of polypropylene, it produced at that time only 0.65% of the total production of continuous synthetic yarns in the Federal Republic of Germany. Those figures are much too small for the aid granted, which represents only a small part of the investment, to have the effect complained of at the level of the common market.

5. The applicant's objections designed to minimize its position on the market must therefore be rejected. Moreover, that analysis is confirmed by the facts. According to the résumé presented by the Commission at the hearing, and which was not challenged, the figures concerning the actual development of Deufil's share of production capacity and total production of polyamide and polypropylene in the Community make it possible to appreciate fully, in the context of a depressed market, the distortions of competition and the effect on trade to which the aid could have contributed.

II — Benefit of the derogations laid down in Article 92 (3)

6. According to the applicant, the aid at issue must be regarded, in accordance with Article 92 (3) (a) and (c), as being compatible with the common market inasmuch as it is intended to promote the economic development of the Bergkamen employment area, in which its plant is located.

7. In the application of each of the derogations laid down in Article 92 (3), the Commission must be entitled to exercise a particularly wide discretion.

III — Legitimate expectation

8. Deufil claims that if the contested decision is upheld, its implementation, which will require the Member State to obtain reimbursement of the aid unduly paid, will infringe the principle of legitimate expectation. The German authorities will be unable, owing to the law on administrative procedure of North Rhine-Westphalia governing the reimbursement procedure, to recover the sum paid, because the applicant was entitled to rely on the definitive nature of the national decision granting the aid.

1 Translated from the French.

2 Official Journal L 207 of 2 August 1984, p. 17.

3 Judgment of 10 July 1986 in Case 40/85.

4 Case 730/79 Philip Morris v Commission [19801 ECR 2671 at paragraph 11 of the decision.

5 Case 730/79 cited above, paragraphs 17 and 18.

6 Case 730/79 cited above, paragraph 24 (the italics are mine).

7 Case 730/79 cited above, paragraph 25.

8 Joined Cases 205 to 215/82 Dtutscht Mikhkontor v Gtmumy [1983] ECR 2633, paragraph 33.