Opinion of Mr Advocate General Van Gerven delivered on 10 December 1991

1 Original language: Dutch.

2 See OJ 1991 C 21, p. 2, where the Commission communication pursuant to Article 93(2) of the EEC Treaty to other Member States and interested parties regarding aid which the United Kingdom Government provided to the Rover Group, an undertaking producing motor vehicles was published.

3 Commission Decision concerning aid provided by the United Kingdom Government to the Rover Group, an undertaking producing motor vehicles (OJ 1989 L 25, p. 92).

4 See Article 1 of Decision 89/58/EEC.

5 Ibid.

6 See Article 2 of Decision 89/58/EEC.

7 In addition to the United Kingdom Government's holding acquired by British Aerospace a further 0.2% of the shares of Rover were held by the public. It is not disputed that British Aerospace could have acquired those shares under the applicable legislation for approximately £300000, at least if—: in the words of the applicants — it had adopted a coldly commercial attitude (see page 12 of the application). Instead British Aerospace decided to pay the remaining shareholders £13.6 million, comprising £10.7 million in cash and the remainder in shares. According to British Aerospace and Rover that inflated price and the contribution of the United Kingdom Government were justified on the grounds of social justice and (more specifically in the case of British Aerospace) public relations.

8 The reference to the communication is given in footnote 1 above.

9 See the opening words of the communication.

10 The Commission also considered Decision 89/58/EEC to be infringed because the penalty to be paid by British Aerospace in the event of an onward sale was relaxed and the United Kingdom authorities had given British Aerospace the assurance of sympathetic consideration of aid applications by British Aerospace for non-Rover businesses. These matters are not, however, the subject of the present case, since the applicants solely claim the annulment of the letter in so far as it requires the United Kingdom Government to recover the abovementioned additional concessions already granted.

11 Sec page 3 of the defence.

12 See pages 8 and 10 of the rejoinder.

13 See pages 6 and 8 of the rejoinder.

14 For such a situation see OJ 1991 C 11, p. 7, where the Commission expressed its view that France had not observed the conditions of an earlier aid decision.

15 See the judgment in Case 60/81 IBM v Commission [1981] ECR 2639, in which an action brought against a statement of objections in the context of competition proceedings was dismissed on the ground that such a statement was merely a preparatory act and did not oblige the undertaking concerned to alter its trading practices.

16 See the Commission's defence, p. 1, point 2.

17 Judgment in Case C-301/87 France v Commission [1990] ECR 307, in particular paras 9 to 24.

18 See para. 21 of the Boussac judgment. I shall shortly consider the question whether that assessment may be made on the basis of the earlier Commission decision that has been infringed (see section 10).

19 See paras 22 and 23 of the Boussac judgment.

20 I am assuming that the earlier decision was not challenged within the prescribed period and hence became definitive.

21 Judgment of 3 October 1991 Italy v Commission [1991] ECR I-4437.

22 See paras 20 to 23 of the judgment.

23 See the fira subparagraph of Article 93(2). The Commission ahvays announces the opening of a new procedure in the Official Journal. In its Fifteenth Report on Competition Policy (No 171) it stated moreover that such announcements would in future be accompanied by considerably more information with the aim of encouraging the intervention of interested third parties in any procedure opened by it

24 OJ 1989 L 25, p. 95.

25 See also para. 3 of the Boussac judgment (cited above in section 9), in which the Court held that, if a Member Sute continues to pay unnotified aid notwithstanding a Commission decision, the Commission may bring that Member Sute before the Court direct — but not, I would add, esublish the infringement of the decision of its own motion.

26 See the tenns of sale set out in Pan II of Decision 89/58/EEC. The applicants cannot rely on the argument — put forward at the hearing — that the operative pan of the decision does not expressly mention that the price must be paid immediately, since the statement of reasons makes clear chat that is the case; moreover, in the absence of a contractual clause to the contrary, immediate payment is the normal rule.