Opinion of Advocate General Darmon delivered on 15 June 1994

1 Original language: French.

2 OJ 1990 L 380, p. 27.

3 Now Article 92(3)(c) of the EC Treaty.

4 Emphasis added.

5 Article 4(2).

6 Emphasis added.

7 The development aid loan amounts to DM 203.22 million. The total price of the container ships is DM 604.14 million.

8 Annex 4 to the application.

9 Annex 3 to the application.

10 Ibid.

11 See the letter from the German Government of 4 November 1991 in which it seeks to show that the price charged is in line with the market price (Annex 5 to trie application).

12 Annex 6 to the application.

13 Commission notice pursuant to Article 93(2) of the EEC Treaty to other Member States and interested parties regarding aid which Germany has decided to grant for the COSCO project (OJ 1992 C 22, p. 4). (Annex 8 to the application).

14 Annex 7 to the application.

15 Annex 10 to the application.

16 Concerning proposed aid by Germany to the Chinese ship-ping company Cosco for the construction of container vessels (OJ 1992 L 367. p. 29).

17 Case 730/79 Philip Moms v Commission [1980] ECR 2671.

18 SG(89)D/311 applying the previous Council Directive 87/167/EEC of 26 January 1987, the wording of which was the same (OJ 1987 L 69, p. 5) (Annex 11 to the application).

19 It might, on the other hand, affect the interests of the competitors of the shipyards to which the contract was awarded.

20 Emphasis added.

21 Joined Cases C-356/90 and C-180/91 Belgium v Commission [1993] ECR I-2323.

22 Of 26 January 1987 on aid to shipbuilding (OJ 1987 L 69, p. 55).

23 Paragraph 30.

24 Paragraph 33.

25 See paragraph 1 of the judgment in Joined Cases C-72 and 73/91 Sloman Neptun Schiffarts [1993] ECR I-887.

26 An example is Council Decision 73/209/EEC of 24 July 1973 concerning the present system of aid in the United Kingdom for the refining of raw sugar (OJ 1973 L 207, p. 47).

27 Judgment in Philip Moms, cited above, paragraph 24, emphasis added. See also the judgment in Case C-303/88 Italy v Commission [1991] I-1433, paragraph 34. The Court's case-law is consistent in that respect.

28 Judgment in Case 284/84 Germany v Commission [1987] ECU 4013, paragraph 19.

29 C. Blumann, Regime des aides d'Etat: jurisprudence récente de la Cour dc Justice, Revue (du Marché commun, 1992, p. 721.

30 Footnote 20.

31 Paragraph 26, emphasis added.

32 Emphasis added. See also Article 4(1).

33 Third recital in the preamble to Council Directive 69/262/EEC of 28 July 1969 on aid to shipbuilding intended to correct distortions of Community on the international market [Journal offiael 1969 L 206, p. 25).

34 See the sixth recital in the preamble to Council Directive 78/338/EEC of 4 April 1978 on aid to shipbuilding (OJ 1978 L 98, p. 19) and the fifth recital in the preamble to Council Directive 75/432/EEC of 10 July 1975 on aid to shipbuilding (OJ 1975 L 192, p. 27).

35 Annex 12 to the application.

36 For this reason the aid granted by the Federal Republic of Germany was notified to the OECD.

37 Annex 13 to the application.

38 Annex 14 to the application.

39 Annex 14 to the application, point 18.

40 Annex 11 to the application.

41 Contested Decision, VI, second paragraph.

42 Contested Decision, VI, third paragraph, subparagraph 2.

43 Paragraph 5 of the reply.

44 Article 4(1). See 2 above.

45 Contested decision, IV, second paragraph, subparagraph 1.

46 OJ 1991 L 158, p. 71.

47 Ibid., II, fourth paragraph.

48 Cited above, note 12; see in particular p. 5.

49 Contested decision, II.

50 And in particular, could the project not be financed by recourse to the market (cash flow)?

51 Contested decision, VI, third paragraph, subparagraph 2 — emphasis added.

52 Judgment of 24 March 1993 in Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 44. See also paragraph 130 of the Opinion of Advocate General Lenz.

53 That word docs not appear in the German, English or Greek versions.

54 Emphasis added.

55 Contested decision, VI.

56 Cited above, note 16.

57 At p. 2701.

58 Paragraphs 17 and 26.

59 Cited above, note 26.

60 See paragraphs 30 to 39.

61 Judgment in Case 310/85 Deufil v Commission [1987] ECR 901, paragraph 18.

62 Case C-305/89 [1991] ECR I-1603.

63 Paragraph 36.

64 G. M. Roberti, Le contrôle de la Commission des Communautés européennes sur les aides nationales, AJDA, 20 June 1993, p. 397, at 407 — emphasis added.

65 For example, in Italy v Commission, cited above, note 61, paragraph 23.

66 Opinion of 11 November 1975 (1/75, [1975] ECR 1355, at 1362.

67 Ibid., at p. 1364.

68 See the seventh recital in the preamble to the seventh directive.

69 Cited above, note 20, paragraphs 32 and 33.

70 Application, paragraph 9.

71 J. Biancarelli, Le contrôle de la Cour de Justice des Communautés européennes en matière d'aides publiques, AJDA, 20 June 1993, p. 412, at 423.

72 ...it is not clear to the Commission based on the information received from the market whether the aid project for the COSCO container vessel contract is not more of an operating aid to the German shipyards involved rather than genuine aid to a developing country (OJ 1992 C 22, p. 5).

73 At the hearing, the Agent for the Commission mentioned, without being contradicted, a meeting held on 12 February 1992 at which the representatives of DG IV expressed doubts as to whether COSCO was an undertaking eligible for development aid.

74 Judgment in Case 810/79 Vberschtr [1980] ECR2747, paragraph 16. See also the judgment in Case 147/79 Hochstrass v Court of Justice [1980] ECR 3005.

75 Paragraph 7 of the application.

76 Judgment in Case C-301/87 France v Commission [1990] ECR I-307, paragraph 29. See the case-law cited. See also the judgment in Case 40/85 Belgium v Commission [1986] ECR 2321, paragraph 28.

77 Ibid., paragraph 30.