Opinion of Advocate General Tesauro delivered on 16 December 1992

1 Original language: Italian.

2 OJ 1991 C 273, p. 2.

3 Council Directive 80/723/EEC of 25 June 1980 on the transparency of the financial relationship between public undertakings and the State, OJ 1980 L 195, p. 35.

4 Case 22/70 Commission v Conimi [1971] ECR 263, paragraphs 38 to 43.

5 Case C-366/88 France v Commission [1990] ECR I-3571, paragraph 8.

6 Case C-303/90 France v Commission [1991] ECR I-5315, paragraph 8.

7 Case C-303/90 Commission v France, cited in footnote 5, paragraph 34.

8 See, for example, the judgment in Case 177/86 UFADE v Commission and Council [1986] ECR 3255, paragraph 11.

9 Sec, for example, the judgment in Case C-303/88 ENI v Lanerossi [1991] ECR I-1433, paragraphs 11, 12 and 13.

10 OJ 1978 L 222, p. 11.

11 Joined Cases 188/80 to 190/80 France, Italy and United Kingdom v Commission [1982] ECR 2545.

12 Case 45/86 Commission v Coimai [1987] ECR 1493, paragraphs 5 and 9.

13 Council Directive 85/413/EEC of 24 July 1985 amending Directive 80/723/EEC on the transparency of the financial relationship between public undertakings and the State, OJ 1985 L 229, p. 20.

14 I considered that it was necessary to answer that question because, whilst it is quite true that the choice of form cannot alter the nature of the act, it is equally true that the absence of some formal requirements, in particular those which enable an act to be identified as binding, would mean that, even where an examination of its content revealed that it was intended to have legal effects, it would in any case be unable to be relied upon against third parties. Essentially, therefore, these would be acts in any event without legal effects vis-à-vis individuals and Member States, irrespective as to whether the Commission was or was not empowered to adopt binding acts in the sector in question.

15 Case 310/85 Denfil v Commission [1987] ECR 901, paragraph 22. In that case, in ruling on the scope of a Commission communication on aid to the textile sector, the Court held that the communication contained guidelines setting out the course of conduct which the Commission intends to follow and with which it asks the Member States to comply ....

16 Sec, among many other judgments, Case 70/83 Kloppenberg [1984] ECR 1075, paragraph 11, Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18, Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24, Case 332/85 Germany v Commission [1987] ECR 5143, paragraph 23, Case 336/85 France v Commission [1987] ECR 5173, paragraph 17 and Case 348/85 Denmark v Commission [1987] ECR 5225, paragraph 19.

17 Joined Cases 205/86 to 215/86 Deutsche Milchkontor [1983] ECR 2633, paragraph 30.

18 Case 322/88 Grimaldi [1989] ECR 4407, paragraph 13.

19 The principle laid down by the Court to the effect that [t] he uniform application of Community law is only guaranteed if it is the subject of formal measures taken in the context of the Treaty (Case 74/69 Hauptzlloamt Bremen v Krohn [1970] ECR 451, paragraph 9) is not without relevance here. Moreover, it seems uncontestable to me that that principle may and must be applied whenever the Treaty provides for the adoption of typical acts in the sector in question.