Opinion of Advocate General Van Gerven delivered on 18 March 1992

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.