Opinion of Advocate General
Mr President,
Members of the Court,
1. In this application Matra SA asks the Court, pursuant to Article 173 of the EEC Treaty, to annul the Commission's decision of 16 July 1991 (hereinafter the contested decision), relating to the grant by Portugal of State aid to a joint venture designated as Newco set up by Ford of Europe Inc. (hereinafter Ford) and Volkswagen AG (hereinafter VW) for the production of multipurpose vehicles in Setúbal. In the contested decision, a copy of which was sent to Matra SA (hereinafter Matra) on 30 July 1991, the Commission stated that it raised no objections to the aid scheme proposed by Portugal.
Background to the case
2. By letters of 26 March and 16 April 1991, Portugal notified the Commission of the aid at issue in accordance with Article 93(3) of the EEC Treaty and point 2.2 of the Commission's notice on the Community framework on State aid to the motor vehicle industry (hereinafter the Community framework). The proposed aid was to amount in total to a maximum of ESC 97440 million, or ECU 547 million, of which ECU 500 million was to be paid as direct aid within the framework of the Sistema de Incentivos de Base Regionale (SIBR), an already existing regional aid programme established by Portugal in cooperation with the Commission. The remaining ECU 47 million would be given to Newco by Portugal in the form of a limited exemption from corporation tax for five years.
3. Following the contested decision, there were further contacts between the Commission and Matra. In response to Matra's letter of 17 June 1991, the Commission replied on 17 July 1991 that substantive improvements had been made to the original aid scheme, that Portugal had duly supplemented its notification at the Commission's request, and that in its opinion there was a fair balance between the interests of regional development and those of free competition. On 30 July, as I have already stated, the Commission sent Matra a copy of the contested decision. In a covering letter, the Commission stated inter alia that in its view the joint venture between Ford and VW met the necessary conditions for an exemption under Article 85(3) of the Treaty and that it had decided to initiate the procedure provided for in Article 19 of Regulation No 17, so that interested third parties might be able to submit observations in this respect.
4. By application lodged at the Court Registry on 6 September 1991, Matra brought the present action for annulment. By order of 4 December 1991 the President of the Court dismissed Matra's application for the suspension of operation of the contested decision and the adoption of a number of interim measures. By orders of 8 April 1992 the President of the Court gave Portugal, Ford and VW leave to intervene in the proceedings in support of the Commission, in accordance with Article 37 of the Protocol on the Statute of the Court of Justice and Article 93 of the Rules of Procedure.
5. The examination of the compatibility with Article 85 of the Treaty of the agreement between Ford and VW to set up a joint venture led to the Commission's decision of 23 December 1992. That decision declared, in accordance with Article 85(3) of the EEC Treaty, the provisions of Article 85(1) inapplicable in principle (Article 1). The exemption was, however, subject to a number of conditions and obligations (Article 2).
Admissibility
6. Ford and Portugal challenge the admissibility of Matra's application for annulment. In their opinion, Matra is not directly and individually concerned by the contested decision, within the meaning of the second paragraph of Article 173 of the EEC Treaty. Matra and the Commission take the opposite view, while VW has not expressed any view on this point.
7. Matra is the only party to submit that the contested decision is addressed to it. In support of that submission, it relies on the fact that the contested decision mentions it expressly, that the competent Commissioner sent it a copy of the decision, and that the letter of 30 July 1991 which accompanied that copy must be regarded as impliedly rejecting Matra's complaint of 26 June 1991.
8. Since it is evident that the contested decision is not addressed to Matra, the question arises whether it is of direct and individual concern to Matra. The parties, who have variously given affirmative and negative answers, base their arguments on the Cofaz judgment of 28 January 1986.
9. I consider that Matra's application meets the conditions of admissibility laid down by the Court in the Cofaz judgment. On 26 June 1991 Matra sent the Commission a complaint against the aid notified by Portugal and intervened on several occasions during the procedure which led to the decision not to initiate the formal procedure provided for in Article 93(2), that being the decision contested here (see paragraph 2 above). Within a period of two months from the communication to it by the Commission of the contested decision, Matra brought the action for annulment which is the subject of this Opinion. Taking all those points into account, I consider that the fact that the Cofaz case related to a decision by the Commission to terminate the formal investigation procedure, whereas the present case concerns the Commission's decision not to open that procedure, cannot give rise to a finding that Matra's application is inadmissible.
10. I therefore conclude that, in the light of the decision in Cofaz, the action for annulment brought by Matra is admissible.
The Commission's substantive assessment of the aid granted by Portugal
11. In the second part of its application, Matra puts forward five pleas in law on the substance of the case. Like the Commission, I shall start by examining those pleas, as such an analysis should make it possible to form a clearer idea of the pleas by Matra based on procedural points.
12. Before examining separately each of the pleas put forward, I consider it appropriate to note that Article 92(3) of the Treaty gives the Commission a wide discretion in assessing the compatibility of State aid with the common market. The Court's case-law on this point is unequivocal. That means, with respect to judicial review of the contested decision, that it is not for the Court to assess whether the decisions adopted by the Commission under Article 92(3) of the Treaty are appropriate. The Court must only ascertain that those decisions are not so unacceptable or manifestly erroneous that they could not reasonably have been adopted. Furthermore, the Court has held that the Commission has to exercise its discretion, which involves assessments of an economic and social nature, within a Community context and that when it is examining the compatibility of aid with the common market, it must take all the relevant factors into consideration.
13. First plea: excess capacity? Matra quotes the following passage from the contested decision to show that the Commission made a manifestly erroneous assessment of the capacity of the European market for multipurpose vehicles:
14. During the oral procedure before the Court it also became apparent that during the informal preliminary investigation the Commission had called upon independent United Kingdom experts with great experience of the motor vehicle industry. I see no reason why the study carried out by those experts should be less objective than the expert reports relied upon by Matra to demonstrate a manifest error of assessment on the part of the Commission. On the contrary, the fact that the Commission thus allowed itself to be guided by an external report confirms my opinion that when assessing the development of the European market in multipurpose vehicles, it was not careless in exercising its discretion under Article 92(3).
15. In connection with the plea relating to overcapacity, Matra also expresses, in its written observations submitted to the Court, its fear that Ford and VW will in future have a dominant position on the multipurpose vehicle market. For the reasons mentioned below and cited by the Commission, I consider that that fear is unfounded.
16. Second and fourth pleas in law: incorrect assessment of the regional handicap and breach of Article 92(3)(a)f According to Matra, when the Commission assessed the regional handicap of the Setúbal area, it committed two errors.
17. The examination of the question whether regional aid is compatible with Article 92(3)(a) of the Treaty must aim to ensure that the percentage of the investment which is financed by the aid does not exceed the additional cost for the investor resulting from the fact that he is investing in an area suffering from a regional handicap, meaning that the area is less developed than other areas of average development. The examination must therefore relate primarily not to the volume of regional aid but to its intensity. In other words, the question is not whether the amount of aid, in absolute figures, is too high, but whether that amount is excessive in relative terms, having regard to the regional imbalance to be compensated.
18. In any event, it follows from the foregoing that it can hardly be deduced, a priori and whatever the criterion chosen, from the mere fact that in the present case Portugal intends to grant a large amount of aid, that that aid is not compatible with Community law.
19. Moreover, Annex I to the communication of August 1988 to which I have just referred to contains a list drawn up by the Commission applying those criteria to the various regions of the Community. It is expressly stated there that the entire territory of Portugal falls within Article 92(3)(a) of the Treaty and that, in accordance with that article, that territory thus constitutes a region whose economic development must be facilitated, because living standards there are abnormally low and/or there is serious underemployment there.
20. Two conclusions can, in my opinion, be drawn from the foregoing. Firstly, Matra's assertion that even without State aid the Setúbal site is just as attractive economically as other sites for the establishment of a motor vehicle factory would appear to be unfounded. However, it also follows from my analysis that, contrary to Matra's assertion in its fourth plea in law, the Commission did not restrict itself to ascertaining whether the Portuguese aid was compatible with the SIBR programme. On the contrary, the text of the contested decision itself shows that, separately from that investigation, the Commission examined whether the subsidy for a project to be carried out in Setúbal was in itself justified, and why and to what extent that was the case. It was precisely for that purpose, moreover, that the Commission on this point too called upon the outside consultants mentioned above, which again shows that it did not confine itself to a mere comparison of the planned aid with the figures and methods used in the SIBR programme.
21. That does not mean, however, that the Commission did not also examine whether the Portuguese aid was consistent with the SIBR programme. That makes sense: the Commission must ascertain whether the aid granted in a specific case falls within the general framework which it has agreed with the Member State in question.
22. Firstly, in this connection, it must be pointed out there is nothing to show that the Commission acted in disregard of the general policy defined by it, as expressed in the section on aid ceilings in the published communication on the application of Article 92(3)(a) to regional aid, cited above. It is there stated (point 5):
23. The question which now arises is whether the Commission was correct in assuming that the limit of 60% net grant equivalent, agreed with Portugal in the context of the SIBR programme, was not exceeded in the present case. For that purpose it must first be determined what proportion of the planned investment of ECU 2550 million could be taken into account for the grant of aid (see point 17 above). The relevant criteria were defined by the Commission and Portugal in the SIBR programme and are referred to in the contested decision:
24. Secondly, it must now be ascertained whether the aid granted for the Newco project corresponding to the above investment items is indeed below the limit of 60% net grant equivalent defined by the SIBR.
25. It follows from the above that the Commission ascertained, in my view, with the required thoroughness and in line with the general approach followed by the Community in such matters, whether the aid notified by Portugal was necessary for overcoming the regional handicap of the area in question, and that, consequently, it did not misuse its discretion under Article 92(3). On the contrary, the Commission complied with the general principle that aid can be regarded as falling within the exceptions laid down in Article 92(3) only if the Commission is in a position to establish that without that aid market forces would not on their own induce the recipient undertakings to conduct themselves in such a way as so contribute to attaining one of the objects specified in that provision. It was precisely in the Philip Morris judgment, cited by Matra, that the Court approved the use of that general principle.
26. I therefore conclude that these two pleas put forward by Matra are also unfounded.
27. Third plea in law: was the financial assistance for the infrastructure works and training programme inappropriately classified? In this plea in law, Matra complains that the Commission committed a third manifest error of assessment by not classifying as aid the planned financing by Portugal of the infrastructure work and training programme at Setúbal. Matra relies here on the Denkavit judgment of 27 March 1980, in which the Court explained that:
28. In the contested decision, the Commission explained why it had reached the conclusion that the infrastructure work planned by Portugal did not constitute aid. It established that all the work to be carried out on the site of the factory would be financed by Ford and VW and that the work to be carried out away from that site would be accessible to all users to the same extent. Services normally paid for, for example, water supply, would continue in future to be supplied to Newco, just as to other users, under normal market conditions.
29. The same principles apply to the training programme to be financed by Portugal. However, this point is more delicate. Portugal has undertaken to train Newco's (prospective) employees without the cost of that training being charged to that company. The contested decision gives the following description of the training envisaged:
30. In the contested decision the Commission summarizes the factors which nevertheless prompted its decision not to classify as aid the sums invested by Portugal in training activities. The management of the training centre for the motor vehicle sector to be established is to be completely independent of that of the factory, and the centre is to be open to other motor vehicle manufacturers. Moreover, the Portuguese authorities stated that after 1993 the training programme would not be adapted in any way to the specific needs of Newco, so that Ford and VW would not be privileged compared with other manufacturers and would moreover themselves have to provide for supplementary technical training. Finally, again according to the contested decision, similar training centres co-financed by the private sector also exist in other important sectors of the Portuguese economy.
31. The Commission took its decision after weighing the arguments for and against. Especially in a field such as professional training, where the human and qualitative aspects are at least as important as the economic and financial aspects and where, because of the usual turnover of employees, the training provided will not benefit Newco exclusively, the Court's review must be marginal (see point 12 above). On this point, even more so than in the matter of the financing of the infrastructure work, it is not for the Court to assess the actual expediency of the Commission's decision.
The procedure followed by the Commission
32. In the first part of its application, Matra raises five pleas in law relating to the procedure followed by the Commission. Firstly, the Commission is said to have infringed Article 93 of the Treaty by deciding that there was no need to open the formal inquiry procedure provided for in Article 93(2), even though there were serious difficulties in assessing whether the Portuguese aid was compatible with Community law (see point 33 et seq. below). Secondly, the Commission infringed the Treaty be severing its examination of whether the Newco project was compatible with the Treaty rules on State aid from its examination of whether that plan was compatible with the rules on competition in Article 85 et seq. of the Treaty (see point 48 et seq. below).
33. First plea in law: failure to initiate the formal inquiry procedure. Between the informal inquiry procedure under Article 93(3) of the Treaty and the formal procedure under Article 93(2) of the Treaty there are fundamental differences. Advocate General Tesauro has recently made a detailed analysis of those differences in his Opinion in William Cook v Commission, an analysis with which I entirely agree.
34. The informal procedure under Article 93(3) is intended, the Court has held, to allow the Commission to form a prima facie opinion on the partial or complete conformity with the Treaty of the aid schemes notified to it. That procedure is characterized to begin with by its lack of transparency. It does not require the Commission to make public the aid schemes notified to it or to give notice to the parties concerned to submit their comments. A second characteristic, the limited opportunity for third parties to intervene, follows logically from that lack of transparency. Only third parties who, like Matra, have been informed of the notification of aid schemes by an unofficial channel are in a position to submit observations. Finally, the informal procedure is characterized by its short duration. The Court has held that it cannot in principle last for more than two months from the time when the notification is complete. After that period, the Member State can pay the aid, after giving prior notice to the Commission.
35. If the Commission finds, during the informal procedure, that the aid notified is prima facie (that is to say, without a more detailed examination being necessary) compatible with Community law, it must inform the Member State concerned of this. A summary of the decision to raise no objections to the aid is published, albeit often belatedly, in the C Series of the Official Journal. As a result of the lack of transparency of the informal procedure, parties who are liable to suffer damage as a result of the aid may learn about it for the first time from that publication.
36. If, on the other hand, following the informal investigation it has carried out, the Commission is not convinced that the aid notified is compatible with the common market, it must, in accordance with Article 93(3) of the Treaty, without delay initiate the formal procedure provided for in Article 93(2). Compared with the informal procedure described above, the formal procedure, which is meant to enable the Commission to clarify cases which do not prima facie appear clear to it, is more transparent and more thorough and gives third parties a greater opportunity to intervene. As a result, it also generally takes longer than the informal procedure.
37. Since the informal procedure under Article 93(3) and the formal procedure under Article 93(2) each have their own purpose and specific features, it is of the greatest importance that the two procedures are not misused.
38. The choice which the Commission has to make, to initiate or not to initiate the formal procedure under Article 93(2), is thus not a simple one and is not devoid of consequences. Since the Council has not yet made use of its power under Article 94 of the EEC Treaty to adopt implementing regulations for Articles 92 and 93, it is for the Court to provide the necessary clarification.
39. The Court went on to apply that principle to the specific facts of the case. It was shown that the Commission had originally considered the Belgian aid to be unacceptable and had subsequently declared it compatible with Community law only after extensive negotiations and substantial amendments to the plan notified. Furthermore, precisely because of those negotiations, 16 months had elapsed between the notification and the favourable decision, a period which well exceed [ed] the period normally required for a preliminary examination under Article 93(3) (paragraph 15). Finally, it was apparent that the Commission had declared the amended aid programme compatible with the common market only subject to compliance with certain conditions, since it remained very concerned about the effects which application of the plan [might] have on competition within the Community (paragraph 16).
40. Matra submits that the factors on the basis of which the Court reached its decision in that case are also present in this case. I now propose (point 41 et seq. below) to examine whether that is indeed the case. I shall then consider (point 46 et seq. below) whether there may perhaps be other factors in the present case which might lead the Court to decide that the Commission should have initiated the formal procedure under Article 93(2).
41. In Matra's view, the Portuguese authorities had already officially submitted the aid plan for Newco to the Commission in November 1990, nine months before the contested decision was adopted. Moreover, precisely as in Germany v Commission, substantial amendments had been made to the original plans. In his letter to Matra, Commissioner Bangemann referred to substantial improvements (see point 3 above). Finally, the Commission had authorized the Portuguese aid only subject to conditions and with reluctance. That the contested decision gave only conditional approval follows, according to Matra, from the conditions attached to it with respect to the availability to third parties of the infrastructure and training. The Commission's misgivings are apparent from the obligation imposed on Newco to submit an annual report to the Commission.
42. The Portuguese notification took place by a letter of 26 March 1991, which was supplemented by a letter of 16 April 1991; additional information on the training programme was given in a letter of 31 May 1991. The contested decision is dated 16 July 1991. Depending on whether or not the letter of 31 May 1991 is regarded as completion of the notification, the Commission thus either complied precisely with, or slightly exceeded (which could be explained by Matra's repeated interventions in the procedure), the maximum period of two months laid down by the Court (see point 34 above). In any case there is no comparison with the period of sixteen months which the Commission needed to come to a decision in the Germany v Commission case.
43. It makes no difference in this respect that there was a preliminary draft scheme and that informal contacts between Portugal and the Commission took place from November 1990. Firstly, notification of an aid scheme is preceded, by definition, by a draft scheme and, secondly, Matra has not produced any evidence which could disprove the assertion by both the Commission and Portugal that mutual contact before notification was restricted to
44. It appears that neither before nor after notification were there any detailed negotiations of the type at issue in Germany v Commission. A comparison of the letters of 26 March 1991 and 16 April 1991 (see point 2 above) shows that the Portuguese amendments to the scheme originally notified consist of details and supplementary information rather than substantial changes. Furthermore, comparison of those two letters with the aid scheme eventually approved shows that the total amount of aid to be granted remained unchanged since notification. Matra's assertion that that amount was reduced by over ECU 100 million following negotiations is not supported by the documents before the Court.
45. Matra considers that its argument, namely that the Commission has serious doubts as to the compatibility of the Portuguese aid with Community law, is supported by the following passage in the contested decision:
46. I therefore conclude that the factors which led the Court to annul the Commission's decision at issue in Germany v Commission are not present in this case.
47. In Matra's view, the Commission must have had serious difficulty in assessing the compatibility of the aid with Communitylaw, if only because of the large amount of that aid. I cannot agree with that point of view.
48. Second plea in law: connection between Article 85 et seq. and Article 92 et seq. of the Treaty. In a second plea, which is essentially an extension of the first plea, Matra raises the question of the connection between two branches of European competition law in the broad sense, namely the law on State aid (Article 92 et seq. of the Treaty) and the law on agreements, decisions and restrictive practices (Article 85 et seq. of the Treaty). Although Matra acknowledges that the Court has not yet specifically dealt with this problem, it nevertheless considers that it follows from the Court's case-law that in a case, some aspects of which concern State aid and other competition, the Commission must ensure that there is some connection between those two branches of the law. More precisely, Matra considers that the Commission could not dissociate the procedure under Article 93 of the Treaty and the procedure under Regulation No 17.
49. Matra bases that position on an analysis of three judgments of the Court. Firstly, it cites the passage from Germany v Commission which I have referred to in point 34 above. It follows from that passage that in the informal preliminary inquiry under Article 93(3) the Commission must ascertain whether the aid notified is compatible with the Treatyas a whole, in other words, including Article 85 et seq.
50. I agree with Matra that it follows from those judgments that the Court considers it important that regard is had to the connection between Treaty provisions which pursue the same objective, even if they are to be applied by different bodies according to different procedures. Both Article 85 et seq. and Article 92 et seq. of the Treaty aim to prevent distortion of the conditions of competition within the common market. The only possible conclusion to be drawn therefrom is thus that when the Commission ascertains whether the aid notified is compatible with Article 92 et seq. of the Treaty, it must at the same time verify whether that aid entails a breach of Article 85 et seq. If we depart from that overall approach, there is a danger of inconsistency.
51. In Matra's view, by declaring the Portuguese aid to be compatible with Community law without having first also analysed the competition law aspects of that aid, the Commission ipso facto prejudged its assessment of the question whether those aspects had been complied with:
52. Although, as I have said, I agree with the principle advocated by Matra, namely that the review of State aid with reference to the provisions on aid and with reference to the provisions on competition must be coordinated, I cannot agree with the way in which Matra applies that principle to the present case. It appears to me that in the present case the Commission adequately coordinated its investigation under Article 85(3) and that under Article 93.
53. The inconsistencies which, according to Matra, arise from an uncoordinated examination of the State aid law and competition law aspects of the aid notified do not strike me as genuine. Thus it is only logical that while the duration of the exemption granted under Article 85(3) for the agreement by Ford and V\V to set up a joint venture was limited to ten years, such a restriction was not expressly provided for in the case of the approval of the Portuguese aid programme. The last instalment of that aid is in fact to be paid on 30 December 1994, after which the programme will end.
54. Matra suggests that the Court should oblige the Commission to reserve its favourable decision under Article 93(3) until the formal procedure under Article 19(3) of Regulation No 17 has been completed. That suggestion conflicts with the settled case-law of the Court to the effect that the informal procedure under Article 93(3) of the Treaty must be as short as possible (see point 34 above).
55. Third plea in law: failure to state adequate reasons for the contested decision. Matra claims that the Commission infringed Article 190 of the EEC Treaty by failing to state adequate reasons for the contested decision. In particular, it failed to give a precise definition of the relevant market, while other factors (inter alia an analysis of the financial impact of the aid, the investment and the regional handicap) were absent altogether from the contested decision. That inadequate statement of reasons impaired Matra's rights of the defence and made it impossible for the Court to assess whether the contested decision was appropriate. The Commission thus disregarded the settled case-law of the Court.
56. As regards the definition of the relevant market, it suffices to observe that in the contested decision the Commission expressly refers to the motor vehicle sector (or market) on the one hand and the multipurpose vehicle segment on the other hand. Matra too, in its written and oral observations to the Court, has always proceeded from the assumption that the multipurpose vehicle market, as a segment of the motor vehicle market as a whole, is the relevant market in this case. Matra was thus evidently scarcely troubled by the confusing terminology the Commission is said to have used.
57. Fourth plea in law: infringement of the rights of the defence. By refusing to initiate the inter partes procedure under Article 93(2) of the EEC Treaty, the Commission is said to have prevented Matra from putting forward its point of view in an adequate manner. In so doing the Commission, in Matra's view, breached the general principle, laid down by the Court, that
58. I stated above (point 7) that, in my view, Matra was not a person affected or a person to whom a decision was addressed, within the meaning of those decisions. I agree with Matra that if the Commission wrongly decides not to initiate the procedure under Article 93(2), that quasi-automatically constitutes a breach of the rights of the defence of the third parties affected. In that event a procedure which is not transparent and gives third parties only a restricted opportunity to intervene (see point 34 above) is wrongly chosen. In Germany v Commission the Court stated on this point:
59. It is, however, above all the particular circumstances of the present case which lead me to the conclusion that the Commission did indeed respect Matra's rights of the defence. It follows from the account of the facts at the beginning of this Opinion, which is not disputed by the parties (see point 2 above), that, before the informal procedure under Article 93(3) had ended, Matra intervened at least twice (by letter of 17 June 1991 to the relevant Commissioners and by a complaint lodged with the Commission on 26 June 1991). The Commission replied to those interventions not only in writing (by a letter of 17 July 1991) but also orally (at a meeting with Matra on 27 June 1991). It must be observed that even if it decides to initiate the procedure under Article 93(2), the Commission is not obliged to hold such oral discussions.
60. The reduced access to the case-file which the Commission allowed Matra during the informal procedure is an inevitable consequence of the fact that that procedure is not inter partes. According to the documents produced to the Court, however, that reduced access did not demonstrably prejudice Matra.
61. Fifth plea: breach of the general principle of sound administration. In support of this plea, Matra again submits that the Commission did not take account of its objections, refused to conduct a detailed investigation into the state of the multipurpose vehicle market and, by the contested decision, prejudged the outcome of the investigation under Article 85(3) of the Treaty. I have already dismissed those assertations as unfounded. I therefore conclude that they are not sufficient to demonstrate any breach of the general principle of sound administration.
62. In conclusion, I propose that the Court decide as follows:
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).