Opinion of Mr Advocate General Darmon delivered on 8 November 1988

1 Translated from the French.

2 Sec the judgment of 10 December 1969 in Case 18/68 Eritlema ν Commission [1969] ECR 459, and, in the context of the ECSC Treaty, the judgment of 4 April 1960 in Case 34/59 Elz. ν Authority [1960] ECR 101, and the judgment of 6 April 1962 in Joined Cases 21 and 26/61 Aleroni & Cov High Authority [1962] ECR 73.

3 Judgment of 5 December 1963 in Joined Cases 23, 24 and 52/63 [1963] ECR 217, al p. 224, emphasis added.

4 Opinion in Case 114/75 National Carbonizing Company v Commission (order of 2 March 1977 removing cases from the Register) [1977] ECR 381, in particular at p. 386.

5 Opinion of Mr Advocate General Capotorti in Case 125/78 GEMA v Commission [1979] ECR 3193, at p. 3200.

6 Judgment of 6 July 1971 in Case 59/70 Netherlands ν Commission [1971] ECR 639. See also the Opinion of Mr Advocate General Roemer in Joined Cases 24 and 34/58 Chambre syndicale de la sidérurgie de l'Est de la France ν High Authority [1960] ECR 281.

7 Case 59/70, cited above.

8 Ibid.

9 It is, moreover, worth mentioning the lack of transparency and openness from which this area seems to suffer. See in particular Despina Schina: State aids under the EEC Treaty, ESC Publishing Ltd, Oxford, 1987, especially pp. 175 and 177 where the author states that The Commission could do a great deal to improve the transparency and efficiency of its procedure relating to the control exercised on State aids.

10 Judgment of 28 January 1986 in Case 169/84 [1986] ECR 391.

11 The order of 11 July 1979 in Case 59/79 Fédération nationale des producteurs de vins de table et vins de pays ν Commission [1979] ECR 2425, related to an action for failure to act brought with a view to obtaining a decision that an aid was incompatible with the common market and the action was brought by an applicant who had submitted observations in connection with a procedure which had already been opened under Article 93 (2); see also R. Jolict: Le droit institutionnel des Communautés européennes—Le contentieux, Liègc, 1981, p. 160, who considers that individuals may not bring an action for failure to act in order to obtain a decision under Article 93 (2).

12 See the Opinion of Mr Advocate General Roemer in Case 18/68 Eridania, cited above: What is important... is that by its failure to act a Community institution has infringed the Treaty. It follows from this that such institution must have had an obligation to act, a mere possibility within the framework of a discretion not being sufficient in the present case; and the Opinion of Mr Advocate General Gand in Case 6/70 Borromeo Arese [1970] ECR 815, especially at p. 822; see also the Opinion of Sir Gordon Slynn in Case 246/81 Lord Bethell [1982] ECR 2277, especially at p. 2296. As far as academic writing is concerned, see in particular E. Reuter: Le recours en carence de l'article 175 du traiti dans la jurisprudence de la Cour de justice des Communautés européennes, Cahiers du droit européen, 1972, p. 159, especially at p. 173.

13 Opinion in Case 70/72 Commission ν Germnny [1973] ECR 813, at pp. 834 to 836.

14 Judgment of 20 March 1984 in Case 84/82 Germany ν Commission [1984] ECR 1451, at p. 1488, paragraph 12.

15 Opinion of Mr Advocate General Mayras, cited above; Opinion of Mr Advocate General Warner in Case 173/73 Italy ν Comminimi [1974] ECR 709, at p. 724: It is particularly to be observed that the power of the Commission to decide that the State concerned is to abolish or alter an existing aid can be exercised only for the future. It cannot have any retroactive or declaratory effect Opinion of Mr Advocate General Reischl in Case 120/73 Lorenz O'udgment of 11 December 1973 [1973] ECR 1471).

16 Case 120/73, cited above.

17 This is to be compared with situations where the application of an aids code enables a requirement to be laid down that all planned aids must be notified, irrespective of the legal framework within which they are proposed. In such a case, the new aid procedure provided for in Article 93 (3) and (2) is applicable even if the proposed aid comes under an existing system. But there one is dealing with exceptions rations materiae to the principles which I have described.

18 Sec the Opinion of Mr Advocate General Warner in Case 177/78 Pigs tuul Bacon Commission ν McCarren [1979] ECR 2161, who considered that negligible alterations need not be notified.

19 Judgment of 15 July 1964 in Case 6/64 Costa ν ENEL [1964] LCR 585, especially at p. 596; Lorenz, cited above; judgment of 19 June 1973 in Case 77/72 Capolongo [1973] ECR 611; judgment of 11 December 1973 ¡n Case 121/73 Markmann [1973] ECR 1495.

20 Judgment of 23 February 1961 in Case 30/59 [1961] ECR 1.

21 Judgment of 1 March 1966 in Case 48/65 [1966] ECR 19, at p. 27.

22 Judgment of 8 March 1972 in Case 42/71 [1972] ECR 105.

23 Opinion of Mr Advocate General Gand in Case 48/65 Liitticke [1966] ECR 19, at p. 31.

24 In my view it is here that the difficulty lies in transposing to this case the solution adopted in the Court's judgment of 4 October 1983 in Case 191/82 Fediol [(1983] ECR 2913. In that case the Court held admissible an action brought against a decision closing the stage of preliminary investigation in the initiation and course of which complainants have specific rights. That is not so in this case. In the context of Article 93 (2) the possibility of submitting observations to the Commission exists but it is couched in general terms... [and] does not provide any further details (judgment of 28 January 1986 in Case 169/84 Cofaz [1986] ECR 391, paragraph 25). Moreover, it is merely hypothetical and arises after the procedure has opened. I would point out in this connection that in the judgment of 15 March 1967 in Joined Cases 8 to 11/66 Cimenteries [1967] ECR 75, the Court characterized a notification made under Article 15 of Regulation Nol7 as the culmination of a special procedure which is distinct from the procedure ... under which a decision on the substance of the case can [subsequently] be taken (at p. 92). Once again that is not the case here.

25 Judgment of 14 November 1984 in Case 323/82 Intermills [1984] ECR 3809.

26 Vandersanden and Barav: Contentieux communautaire, pp. 145 and 146 and 229 and 230; Kovar: Jiirisclasseur de droit international, 1980, Vol. 161 C, p. 8, point 24.

27 Borromeo Arese, cited above, [1970] ECR 815. This solution has given rise to reservations identical to those described with regard to negative acts; it is pointed out in this connection too that a failure to act may have definitive legal effects which the positive act would not have (see references and authors cited in note 22).

28 Judgment of 18 November 1970 in Case 15/70 Chevalley [1970] ECR 975, at p. 979, paragraph 6.

29 Judgment of 2 July 1974 in Case 153/73 [1974] ECR 675.