Opinion of Advocate General

Mr President,

Members of the Court,

1. The questions on which the Efeteio, Athinos (Court of Appeal, Athens), has requested the Court of Justice to give a preliminary ruling in this case relate to the scope and the direct effect, if any, of certain provisions of the Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (the Second Council Directive).

2. Replies to two of the three questions have already been given in the recent judgments in Eleftheri Evangiliki Ekklisia and Karelia and Karellas. In particular, in the judgment in Karelia and Karellas — to which I would refer, since the parties have not raised any new arguments in these proceedings with respect to those put forward on that occasion — the Court ruled that Article 25(1) of the Second Council Directive may be relied upon by individuals against the public authorities before national courts and that Article 25 in conjunction with Article 41(1) of the Second Council Directive must be interpreted as meaning that they preclude national rules which, in order to ensure the survival and continued operation of undertakings which are of particular economic and social importance for society as a whole and are in exceptional circumstances by reason of their excessive debt burden, provide for the adoption by administrative act of a decision to increase the company capital, without prejudice to the right of pre-emption of the original shareholders when the new shares are issued.

3. The only new issue raised by the instant case relates to the effect which Commission Decision 88/167/EEC of 7 October 1987, adopted under the procedure provided for in Article 93 of the EEC Treaty, may have on the applicability of the Second Council Directive.

4. In this context, I can only confirm the view which I have already given, while pointing out that, as is clear from the Court's case-law and from the consistent practice of the Commission, the Commission cannot, within the confines of the discretionary powers conferred upon it by the Treaty in relation to the assessment of State aids, authorize derogations from the application of Community rules other than those provided for in the Treaty provisions concerning State aid.

5. In conclusion, therefore, I propose that the Court should reply the questions referred for a preliminary ruling by the Efeteio Athinion:

1 Original language: Italian.

2 OJ 1977 L 26, p. 1.

3 Judgment of 24 March 1992 in Case C-381/89 Eleftheri Evangiliki Ekklisia [1992] ECR I-2111.

4 Judgment of 30 May 1991 in Joined Cases C-19/90 and C-20/90 Karelia and Karellas [1991] ECR I-2691.

5 OJ 1988 L 76, p. 18.

6 Judgments in Case C-21/88 Du Pont de Nemours [1990] ECR I-889, in Case 18/84 Commission v France [1985] ECR 1339, in Case 73/79 Commission v Italy [1980] ECR 1533 and in Case 91/78 Hansen [1979] ECR 935.

7 I am referring in particular to the decisions relating to State aid in the agricultural sector in which the Commission states that even ifit were possible to apply a derogation pursuant to Article 92(3) of the EEC Treaty, the fact that the aid measure in question constitutes an infringement of the common organization of the market precludes the application of a derogation: cf. decisions 90/197/EEC of 4 October 1989, OJ 1990 L 105, p. 15, 89/580/EEC of 21 March 1989, OJ 1989 L 324, p. 26, 89/229/EEC of 21 December 1988, OJ 1988 L 94, p. 43, 88/605/EEC of 8 June 1988, OJ 1988 L 334, p. 22, and 88/39/EEC of 6 May 1987, OJ 1987 L 23, p. 18.