Opinion of Advocate General Van Gerven delivered on 28 April 1993

1 Original language: Dutch.

2 For a definition of multipurpose vehicle, see the Notice (91/C 182/07) pursuant to Article 19(3) of Council Regulation No 17 concerning Notification No IV/33.814 — Ford/Volkswagen, OJ 1991 C 182, p. 8.

3 Commission Notice 89/C 123/03, OJ 1989 C 123, p. 3.

4 The contested decision contains the references to the Portuguese decree establishing the SIBR and the document by which the Commission approved the scheme.

5 The summary is published under the heading Authorization for State aid pursuant to Articles 92 and 93 of the EEC Treaty. Cases where the Commission raises no objections (91/C 257/04), OJ 1991 C 257, p. 5.

6 Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

7 Order of the President of the Court in Case C-225/91 R Matra y Commission [1991] ECR I-5823.

8 Orders of the President of the Court in Case C-225/91, not published in the ECR.

9 Commission Decision 93/49/EEC of 23 December 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/33.814 — Ford/Volkswagen) (OJ 1993 L 20, p. 14). See also Notice 91/C 182/07, cited in note 1 above.

10 Case T-17/93, pending before the Court of First Instance.

11 In the first case the act is addressed to the applicant as a result of its form, in the second case as a result of its nature.

12 Case 169/84 Cofaz v Commission [1986] ECR 391.

13 Cofaz judgment, paragraphs 24 and 25.

14 The decision was communicated, as slated above (see points 1 and 3 above), by a letter dated 30 July 1991. Matra's application was lodged at the Court Registry on 6 September 1991.

15 In his Opinion in Case C-198/91 Cook v Commission, Advocate General Tesauro adopts a position which I can only agree with. He states, correctly in my view, that even persons who have suffered damage — such as the competitors of die recipient undertaking — who have not intervened during the informal procedure under Article 93(3), for example because they had no knowledge of the aid granted, must be entitled to bring proceedings against the Commission's decision not to initiate the procedure under Article 93(2).

16 See the judgment in Case 78/76 Stctmke una Wemlig v Germany [1977] ECR 595, paragraph 8, recently confirmed inter alia by the judgment in Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 34.

17 Ibid.

18 Judgment in Case C-261/89 Italy v Commission [1991]ECR I-4437, paragraph 20.

19 Contested decision, p. 10.

20 Contested decision, p. 6. Matra also considers, in its written observations, that demand can realistically be expected to reach 300000 in 1994.

21 Contested decision, p. 10. The Commission also notes, in the written observations submitted to the Court, that in that notice it merely stated that it would ensure that regional aid did not create substantial overcapacity (see the heading regional aid in point 3 of the framework). In a statement during the oral procedure before the Court, it refined its thinking, saying that a certain amount of overcapacity encouraged competition.

22 Contested decision, p. 11.

23 Judgment in Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 17. That paragraph, incidentally, also rightly notes the discretion given to the Commission by Article 92(3).

24 See point 5 (the common method of assessing aid) of the Annex to the First Resolution of 20 October 1971 of the Representatives of the Governments of the Member States, meeting within the Council, on general systems of regional aid (OJ, English Special Edition, Second Series, IX, p. 57). The Resolution reproduces word for word the communication of the Commission and the Council on general schemes of regional aid (JO 1971 C 111, p. 7).

25 Ibid.

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

27 Thus the unemployment level there (20.6% of the working population) is twice as high as the national average.

28 According to a report produced in 1989 by the Portuguese Ministry of Industry and Energy, quoted in Portugal's observations to the Court, productivity in that country is at a level between one-third and one-quarter of the Community average.

29 See the analysis in point 16 et seq., from which it can also been seen that the Commission's decision is based on a study of the extent of the regional handicap and the suitability of the planned aid for overcoming that handicap.

30 Reply, p. 2.

31 See note 25 above.

32 Contested decision, p. 5.

33 In the defence the Commission conveys the impression that, in order to resolve the regional handicap. operating aid should also be authorized. In the reply Matra correctly points out that in its communication on State aid to the motor vehicle industry, the Commission itself states that such aid ought to be prohibited, even in disadvantaged regions. In this respect, however, it is not the Commission's defence but the contested decision which is authoritative. Nowhere docs the contested decision authorize operating aid. On the contrary, according to the decision, it is only the technical development of the product and the manufacturing process which is eligible for the grant of aid, in other words, not the actual manufacture of the multipurpose vehicles.

34 The aid granted under the SIBR programme is cumulative, to a limited extent, with aid of a fiscal nature. The aids thus cumulated may not, however, exceed 75% net grant equivalent. See on this point Document SEC(88) 1979 of 13 December 1988, unpublished, but produced by the Commission at the Court's request. Although the failure to publish such documents is not unlawful, their publication might lead to greater transparency.

35 ECU 547 million is only 32.8% of ECU 1668 million, as the Commission itself notes in the contested decision. However, the Commission used a figure of 33.5% gross grant equivalent. No explanation has been given for the slight difference between those two percentages.

36 Given that the fiscal aid, amounting to ECU 47 million, may be granted on top of that granted under the SIBR, which is limited to 75% and 60% respectively (see note 33 above), the margin between the rules determined by the SIBR and the aid granted to the Newco scheme is even greater than appears at first sight.

37 Philip Morris, paragraphs 16-17 and 25-26.

38 Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205, paragraph 31. On the basis oí the definition it applied, the Court held that the duty of the fiscal authorities of a Member State to repay taxes which were incompatible with Community law Jul not constitute aid.

39 Contested decision, p. 8.

40 Contested decision, p. 8: [the training centre for the motor vehicle sector] will not constitute the only solution to the need for training in that plant and a training programme will also be carried out in other Ford plants and other Portuguese training centres.

41 See note 14 above.

42 See Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 11, with references to other judgments.

43 Joined Cases 91 and 127/83 Heineken Brouwerijen [1984] ECR 3435, paragraph 15.

44 Germany v Commission, paragraph 13.

45 Sec Case 120/73 Gebruder Lorenz v Germany [1973] ECR 1471, paragraph 4.

46 Germany v Commission, paragraph 12.

47 In the present case, the decision, adopted on 16 July 1991, was not published until 3 October 1991 (see note 4 above).

48 The parties concerned include the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations. Article 93(2) is thus addressed to an indeterminate group of persons: Case 323/82 Intermitís v Commission [1984] ECR 3809, paragraph 16.

49 See Article 93(2) of the Treaty. Individual notice does not have to be given to particular persons: Intermills v Commission, paragraph 17.

50 Germany v Commission, paragraph 13. See also Intermills v Commission, paragraph 17.

51 Case C-312/90 Spain v Commission [1992] ECR I-4117, paragraph 22, and Case C-47/91 Italy v Commission [1992] ECR I-4145, paragraph 28.

52 Germany v Commission, paragraph 10.

53 See note 41 above.

54 Defence, p. 24.

55 See the judgment in Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 16.

56 That is not contradicted by Commissioner Bangemann's letter. The substantive improvements mentioned refer, in my view, to the additional information and details I have just referred to, which were intended to define the extent of the planned aid more clearly.

57 Contested decision, p. 8.

58 It can be seen from the first part of this Opinion that the Commission did indeed carry out a detailed examination in this case.

59 See also point 17 above, where I have already observed that it is not the volume but the intensity of regional aid which must determine its conformity with Community law.

60 It is settled law that the comparatively small amount of aid or size of a recipient undertafdng does not exclude the possibility of trade between Member States being adversely affected; see the judgment in Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 27.

61 See note 5 above.

62 Case 73/79 Commission v Italy [1980] ECR 1533, paragraph 11.

63 Application, pp. 19-20.

64 Contested decision, p. 10.

65 Matra refers to the judgment in Case 296/82 Netherlands and Leeuwarder Papierwarenfabríek v Commission [1985] ECR 809, paragraph 19 et seq.

66 Case 24/62 Germany v Commission [1963] ECR 63, p. 69.

67 Contested decision, pp. 2 and 6.

68 Thus Matra argues that its application is admissible by observing that, unlike its competitors, it manufactures only multipurpose vehicles, and its market position thus depends exclusively on the development of that market segment (point 9 above).

69 Case 121/76 Moh v Commission [19771 ECR 1971, paragraph 20.

70 Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 15.

71 Since the Commission's inquiry was not directed against Matra, its procedural rights are, according to the Court's case-law, less far-reaching than those of an undertalting which is the object of an investigation; see Joined Cases 142 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 20: the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the object of the Commission's investigation.

72 In competition cases, even if a formal procedure is initiated, that does not mean that the entire case file is communicated to third parties. Thus documents containing business secrets cannot in any circumstances be made public; sec the judgments in Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 26 et seq., and DAT and Reynolds, paragraph 21.

73 At the hearing the Commission, on the other hand, asserted that Matra in one way or other had always had access even to the most confidential documents of the Commission. It gave as an example the reports which were drawn up at Setúbal in October 1992 ana whose contents found their way into the press.

74 That docs not answer the question whether the rights of the defence were respected with regard to other third parties. Since Matra is the only manufacturer in Europe producing multipurposes vehicles exclusively (see point 9 above) and, moreover, has a dominant position in that market segment (see point 15 above), the question does not really arise. To guarantee the rights of the defence even for interested partics who arc not aware of the informal procedure initiated under Article 93(3) of the EEC Treaty, it is necessary, as Advocate General Tesauro recommends, to extend the conditions of admissibility for the benefit of those parties (sec note 14 above).