Opinion of Advocate General
Mr President,
Members of the Court,
1. Cases C-319/90 and C-47/91, now before the Court, are applications for the annulment of Commission decisions initiating the procedure provided for in Article 93(2) of the EEC Treaty.
2. Case C-319/90, Spain v Commission, is concerned with aid granted by the Spanish Government to a group of manufacturers of electrical equipment (Cenemesa, Conelec and Cademesa) as part of a winding-up and restructuring agreement. On 3 August 1990 the Commission initiated the procedure provided for in Article 93(2) with regard to that aid. On 11 October 1990 the Spanish Government lodged an application for the annulment of that decision in which it argued inter alia that the aid in question was wrongly categorized as new aid which had not been notified. It claims that it notified the Commission in due time of the aid which it granted. Since, however, the Commission did not give its views on the lawfulness of the aid within a two-month period, the aid is to be regarded, according to the Court's case-law, as existing aid.
3. Case C-47/91, Italy v Commission, is concerned with aid granted by the Italian Government to a cereal-processing undertaking located in Naples (Italgrani SpA). The aid in question was granted pursuant to arrangements governing aid to the Mezzogiorno (southern Italy) which were introduced by Italian Law No 64 of 1 March 1986. The Commission approved those arrangements conditionally by Decision 88/318/EEC of 2 March 1988. Following an initial investigation in which doubt arose as to whether the aid was compatible with the conditions set out in Decision 88/318/EEC, the Commission decided on 23 November 1990 to initiate the procedure provided for in Article 93(2).
General background to the question of admissibility
4. The Commission takes the view in both cases that the decision to initiate the procedure provided for in Article 93(2) cannot be the subject of an application for annulment within the meaning of Article 173. It has therefore raised an objection of inadmissibility in accordance with Article 91(1) of the Rules of Procedure, in which it draws attention to the potential consequences of a declaration that the applications for the annulment of the contested decisions are admissible. In the first place it might disrupt the distribution of jurisdiction, as laid down in the Treaty, with regard to the control of State aids. It refers in that connection to the IBM case, in which the Court held with regard to a decision initiating a procedure in a cartel case that:
5. The Court has decided to rule first on the objection of inadmissibility. I shall therefore not be considering those grounds for annulment raised by the applicants which have no bearing on that objection.
6. Subsequently, the IBM case-law has been applied in various judgments by the Court — even outside the sphere of competition law — and by the Court of First Instance to measures adopted by a procedure involving several stages.
7. I infer the following from that case-law. In the first place, it has to be considered whether the contested measure brings about or has binding legal effects.
8. It was therefore decided in AZKO, on the basis of the criterion of adequate legal protection, that an application for the annulment of the Commission decision not to regard certain documents in the file as being confidential, with the result that they could be communicated to the complainant undertaking, was admissible because otherwise it would have been impossible to prevent irreversible consequences for the applicant. The Court's conclusion was the same irrespective as to whether or not the administrative procedure would ultimately have led to a final decision holding there to have been an infringement of Article 86.
9. It appears from the foregoing that the question whether an action for annulment can be brought against a certain measure at an early stage must be examined on a case-by-case basis in the light of the criteria set out to this end by the Court in the case-law. The case-law seeks to strike a balance between adequate protection of the applicant's rights and the division of powers and of the remedies laid down by the Treaty together with the requirements of the sound administration of justice and the proper course of the administrative procedure (see the passage quoted from the judgment in IBM in point 4 above).
Case C-312/90 Spain v Commission
10. It is important precisely to identify the Commission measure which the applicant is contesting. A Commission decision to initiate a procedure under Article 93(2) of the EEC Treaty contains two distinct elements: in the first place, the decision contains a provisional evaluation of the compatibility with the Treaty of the relevant aid, an element which neither of the parties maintains can be the subject of an early application for annulment; in the second place, the decision categorizes the aid as new aid within the meaning of Article 93(3), which, according to the Commission, was not notified.
11. It is not appropriate to consider that dispute here. With a view to the examination of the admissibility of the action for annulment which has been brought by Spain I must assume that the most disadvantageous situation for the applicant obtains. Whether that situation does in fact obtain will have to be considered — in the event that the application is declared admissible — when the grounds for annulment raised by the applicant are considered. In discussing the question of admissibility I shall therefore assume that the Commission wrongly categorized the relevant aid measures as new, unnotified aid (I shall refer to this hereinafter as the categorization decision).
12. There remains the question whether the contested categorization decision, owing to its binding legal effects, clearly and definitively altered the applicant's legal position. That will be the case where the applicant cannot be sufficiently protected against the illegality of the decision by an application for the annulment of the final decision.
13. In my view, it is likewise possible — depending on the particular circumstances — for the applicant's interests in a case such as the present to be in danger of being irreversibly affected by a categorization decision such as the one at issue — for example, where, as a result of the Commission's categorizing the aid as an unnotified new aid, the Member State concerned complied with the prohibition on putting the aid into effect which is contained in Article 93(3) and the undertaking for which the aid was intended gets into financial difficulties or cannot proceed with restructuring plans as a result of the failure to pay over the promised aid. It is clear that in such a case the continued existence of the undertaking or its creditworthiness is hable to be irreversibly affected and an application for the annulment of the categorization decision must therefore be regarded as being admissible.
14. In view of the foregoing I consider therefore that the Spanish Government's application for the annulment of the contested decision is inadmissible.
Case C-47/91 Italy v Commission
15. In this case, too, the dispute between the parties is based on whether the Commission rightly categorized an aid granted by Italy as new aid which had to be notified, with all the consequences that that entails (see point 11 above).
16. What differentiates this case from C-312/90 is that although the Italian Government granted the aid it did not actually pay it because of the Commission's view that the aid should be categorized as new aid and therefore had to be notified. As has already been pointed out, that circumstance may be such as to justify the interest which an undertaking to which aid has been granted, such as Italgrani, may have in an early application for annulment, if it can prove that the Commission's categorization decision caused it to suffer adverse effects which can no longer be adequately made good by bringing an application for the annulment of the Commission's final decision. That will be the case in particular where the nonpayment of the aid caused the undertaking concerned to suffer serious financial problems or problems relating to its creditworthiness which may jeopardize its continued existence. As has already been mentioned, the question also arises as to whether the Member State concerned may take legal action to protect this interest which primarily affects the undertaking. In this case Italgrani withdrew its application for the annulment of the contested decision after the Commission adopted its final decision holding the aid to be lawful.
17. As far as the application brought by the Italian Government is concerned, I would not deny that a Member State may also have an interest in the survival of an undertaking established in its territory and that an early application by the Member State for a declaration that the Commission's categorization decision is void may possibly be admissible where the decision might jeopardize the continuing existence of an undertaking to which aid has been granted (but where the aid has not yet been paid). However, as has already been observed, such circumstances have not been shown to exist in this case and the Member State cannot therefore invoke them.
18. In view of the specific circumstances of the case, I therefore consider that the application brought by the Italian Government is also inadmissible.
Conclusion
19. In view of the foregoing I propose that the Court should declare inadmissible the actions brought in Case C-312/90 and C-47/91 by the Spanish and Italian Governments respectively against Commission decisions initiating a procedure under Article 93(2) of the EEC Treaty and against the decisions contained therein categorizing the aid in question as new aid, and order the applicant Governments to pay the costs.
1 Original language: Dutch.
2 See Case 120/73 Lorenz v Germany [1973] ECR 1471, paragraph 4.
3 Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 20.
4 The Commission sutes that, of the 2000 cases of State aids which it investigated between October 1986 and September 1990, the procedure provided for in Article 93(2) was initiated in respect of 202 and that only in 48 cases did it conclude that the aid was incompatible with the common market or reach a conditional final decision.
5 Cited in note 2. The paragraph quoted here from that judgment refers to the established case-law of the Court, going back for example as far as the judgment of 15 March 1967 in Joined Cases 8 to 11/66 Cimenteries v Commission [1967] ECR 75, at pp. 90-93.
6 It appears from paragraph 17 of the judgment that the Court does not have in mind measures which only affect the applicant's procedural situation.
7 See, for example, the Court's judgments in Case 53/85 AKZO [1986] ECR 1965 and in Case 346/87 Bossi [1989] ECR 303, paragraph 23 et seq. and the judgments of the Court of First Instance in Joined Cases T-32/89 and T-39/89 Marcopoulos [1990] ECR II-281, paragraph 21, in Case T-64/89 Automec [1990] ECR II-367, paragraph 42 et seq., and in Case T-116/89 Prodifitrma [1990] ECR I-843, paragraph 63.
8 Cited in note 6.
9 I shall have no further regard in this case to the possibility of bringing an action for damages since such an action constitutes independent proceedings. Neither Ín the judgment in AKZO did the Court consider that possibility when assessing whether the requirement for adequate legal protection was satisfied.
10 Cited in note 1.
11 Where unnotified aid is concerned, it is in principle not the case that the Commission has to complete its investigation within a two-month period. See in that connection Case C-301/87 France v Commission (Boussac) [1990] ECR I-307, paragraph 27. This does not mean that the Commission is not under dutv to act expeditiously in compiling the file and carrying out its preliminary investigation of it.
12 Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires v French State [1991] ECR I-5505, paragraph 12.
13 Cf. the judgment in Cimenteries cited in note 4, at p. 93.
14 In the contested decision the Commission complains that the Italian Government granted the aid and reminds the Government that under Article 93(3) it may not put that aid measure into effect until such time as the Commission has taken a positive final decision (see Annex I to the application). It can be inferred from this that the aid has indeed not yet been paid. It also appears from Italgrani's letter to the Court of 22 January 1992 in which it withdraws its application in Case C-100/91 that no aid was paid before tne Commission's final decision (page 3).
15 The questions raised here exhibit a clear similarity to the quesuon whether a Member State may (as Italy might in act have done in this case but did not do so) show in an application for interim measures that it suffered serious and irreparable damage as a result of damage sustained by an undertaking or sector in that Member Sute. See in that connection the order of 17 March 1989 in Case 303/S8R Italy v Commission [1989] ECR 801 (summary publication only) in which it was held that the applicant Member Sute could not successfully invoke such damage. In that order the President of the Court did not discuss the question of possible damage to the sector concerned and hence to the national economy as a whole, as it had not been proved that such damage had occurred. See also the order of 8 May 1991 in Case C-356/90R Belgium v Commission [19911 ECR I-2423.