Opinion of Advocate General Darmon delivered on 6 October 1993

1 Original language: French.

2 Commission Decision 91/389/EEC on aid granted by the city of Hamburg (OJ 1991 L 215, p. 1).

3 Report for the Hearing: I. Facts.

4 Letter of 3 May 1989, ref. SG(89) D/5660. Annex 7 to the defence in Case C-324/90.

5 Notice C-11/89 (OJ 1989 C 309, p. 3).

6 Judgment in Case C-301/87 France v Commission [1990] ECR I-307, paragraphs 9 to 24.

7 Section 43 of the application.

8 Judgment in Case 290/83 Commission v France [1985] ECR 439, paragraph 13.

9 Judgment in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205.

10 Paragraph 31.

11 Application of the German Government, pp. 4 and 18 to 43.

12 Judgment in Case 234/84 Belgium v Commission [1986] ECR 2263. paragraph 16.

13 Third paragraph of Annex 7 to the defence in Case C-324/90.

14 OJ 1989 C 309, p. 3.

15 Section 2.

16 Annex 2 to the Commission's defence in Case C-324/90.

17 Judgment in Case C-301/87, cited above.

18 Paragraph 19.

19 Letter of 3 May 1989, cited above.

20 Fourth paragraph, my emphasis.

21 Paragraph 22. See also the judgment in Case C-142/97 Commission v Belgium [1990] ECR I-959.

22 Judgment in Case 234/84, cited above.

23 Judgment in Case 248/84 Germany v Commission [1987] ECR 4013.

24 Paragraph 18.

25 Moreover, the fact that all the contracts contain a clause to the effect that the amount of the subsidy should be repaid in the event that the headquarters or activities of the undertaking arc transferred or that staff is cut by more than 20% for reasons other than cyclical ones, supports the Commission's arguments. Such a condition shows that the aid is granted for individual reasons and not on account of a higher general interest.

26 Decision 91/389/EEC, cited above, p. 5.

27 Paragraph 18.

28 Cited above.

29 Paragraph 33.

30 Judgment in Case 102/87 France v Commission [1988] ECR 4067.

31 Paragraph 6.

32 First resolution of the representatives of the Governments of the Member States meeting in the Council on regional aid schemes (OJ 1971 C 111, p. 1).

33 Section 6.

34 Judgment in Case 730/79 Philip Moms Holland BV v Commission [1980] ECR 2671.

35 Paragraph 11.

36 Judgment in Case 259/85 France v Commission [1987] ECR 4393.

37 Paragraph 24.

38 See also the judgment in Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 27.

39 Paragraph 19.

40 Judgment in Case 730/79 Philip Morris v Commission, cited above, paragraph 11.

41 Judgment in Case C-142/87, cited above.

42 Paragraph 43.

43 Judgment in Case 248/84 Gennany v Commission, cited above, paragraph 18.

44 Judgment in Joined Cases 296/82 and 318/82 Kingdom of the Netherlands and Leeuwarder Papterwarenfabnek v Commission [1985] ECR 809, paragraph 19.

45 Notification of an aid scheme of minor importance (OJ 1990 C 40, p. 2).

46 Second paragraph, my emphasis.

47 Judgment in Case C-364/90 Italy v Commission [1993] ECR I-2097.

48 Paragraph 24.

49 Even where a region is regarded as less-favoured, it should be borne in mind, : is J. Biancarelli writes, that . if the region in question is recognized as being less-favoured, this does not entail any entitlement to the grant of aid. In addition, any aid must be of a structuring nature, which is tantamount to ruling out rescue aid (Actualité juridique, Droit administratif, 20 June 1993, No 6, p. 412 et seq., especially at p. 425.

50 Paragraph 19.

51 At the end of the fourth paragraph of section 10.

52 Commission communication on the method for the application of Article 92(3)(a) and (c) to regional aid, OJ 1988 C 212, p. 2.

53 Cited above, footnote 51.

54 Annex 9 to the defence in Case C-324/90.

55 Decision at issue, p. 7.

56 Judgment in Case 730/79 Philip Morris, cited above, paragraph 24.

57 Ibid., paragraph 18.

58 Commission Decision 87/573/EEC of IS July 1987 on the redesignation of assisted areas in Denmark on 1 January 1987, OJ 1987 L 347, p. 64.

59 Judgment in Case 134/84 Williams v Court of Auditors [1985] ECR 2225. See also to this effect the judgment in Case 246/83 De Angelis v Commission [1985] ECR 1253, paragraph 17.

60 Paragraph 14.

61 Judgment in Case 730/79 Philip Morns, cited above, paragraph 24.

62 Judgment in Case 323/82 Intermills v Commission [1984] ECR 3809.

63 paragraph 17.

64 As regards the repayment of the aid unlawfully granted, the decision in question is reasoned as follows: Since the aid in question granted by the city of Hamburg docs not have any justification, it must, in so far as it has already been disbursed, be recovered from the recipient undertakings. As the demand for repayment is a logical consequence of the illegality and incompatibility of an aid and as especially the obligation provider/for in Article 93(3) of the Treaty to notify a new aid is of a fundamental nature, any undertaking benefiting from State aids must be aware that pnor notification of such an aid must be given to the Commission and that in the absence of notification repayment of the aid may be required. (second paragraph of section IV, 14).

65 Judgments in Case C-303/88 Italy v Commission [1991] ECR I-1433 (and granted to ENI-Lancrossi) and in Case C-305/89 Italy v Commission [1991] ECR I-1603 (aid granted to Alfa Romeo).

66 Judgment in Case 70/72 Commission v Germany [1973] ECR 813.

67 Judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959.

68 Paragraph 66.

69 In his Opinion in the case concerning aid granted to ENI-Lanerossi, Mr Van Gerven stated as follows: ... the Commission states in reply that it is immediately apparent from Article 93(2) of the Treaty — which provides tor the abolition (or alteration) of aid —that the order for recovery does not need to be based on specific reasons. It can be inferred from the Court's judgment in Case 70/72 that the reasons which the Commission must state in its decision relate to the incompatibility of the aid with the Treaty; if reasons are stated in that regard, the Commission can require the aid to be recovered at once. That is correct, in my view. (second paragraph of section 23). In his Opinion in the case concerning aid granted to Alfa Romeo, he stated that Recovery, the judgment in Case C-142/87 adds, is the logical consequence of a finding of invalidity, which, it may be inferred, thus requires no specific reasoning (section 21).

70 Judgment in Case C-305/89, cited above.

71 Paragraph 41.

72 Judgment in Case C-303/88, cited above.

73 Paragraph 52.

74 Paragraph 54.