C-5/86

OPINION OF MR DARMON — C A S E 5/86

O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 26 February 1987*

Mr President, orities could not recover the sum paid does Members of the Court, not constitute proof that implementation was impossible, because the Commission's I — 1. In this action the Kingdom of objective was to abolish the aid, and, as the Belgium is charged with having failed to Belgian Government itself admits, that implement the uncontested decision of 27 objective could be attained by proceedings June 1984' by which the Commission of the for winding up the company, which the European Communities declared that aid Belgian authorities could institute in their granted in the form of a participation in the capacity as shareholder or creditor'.2 capital of a private undertaking was incom- patible with the common market within the meaning of Article 92 of the EEC Treaty. 4. The Belgian Government took I I — 2. The dispute is therefore about the cognizance of the Court's decision. It had way in which that participation is to be commenced winding-up proceedings but its repaid. In the written procedure the point representative has just informed us at the was raised whether the necessity to wind up hearing that a more desirable solution — the the undertaking concerned meant that buying-back by the undertaking of the it was impossible to implement the Belgian State's holding — was about to be Commission's decision. reached.

3. As regards that point the Court has held in a similar case that: 5. Nevertheless, the fact remains that the aid in question has still not been returned. 'The fact that, on account of the under- Therefore the Kingdom of Belgium is still in taking's financial position, the Belgian auth- breach of its obligations.