C-387/92

* Original language: German. 1 — Since 1 November 1993 the EEC Treaty has become the EC Treaty in accordance with the Treaty on European Union 2 — Law 13/71 of 19 June 1971 on the Organization and Rules of 7 February 1992 (OJ 1992 C 191). governing Official Credit, BOE of 21 June 1971.

I-879

OPINION OF MR LENZ — CASE C-387/92

provision grants to public credit institutions their annual performance, investments and may constitute an abuse by one or more financing are public-law bodies (and not undertakings of a dominant position on the companies). common market, or a substantial part thereof, and may thereby infringe the princi­ ple of free competition, or on the ground that any aid granted out of public funds which distorts, or is liable to distort, free competition by favouring certain undertak­ 6. The national court has referred the fol­ ings or products is incompatible with the lowing questions to the Court of Justice: EEC Treaty. Subject to the limitations pro­ vided for in Article 90, public undertakings must observe the prohibition, laid down in Article 86, against the abuse of dominant positions. However, account must also be taken of the case of the undertaking not act­ ing independently but as an official agent car­ 'Should the exemption from taxes payable to rying out the economic policy of the govern­ the State, province, municipality and other ment, in which case, having regard to entities of public law which Spanish law Article 90 (2) — but only in respect of those grants to public credit institutions provided functions — the rule in Article 86 would not that they possess the status of taxpayers appear to apply. (Article 29 of Law 13/71 of 19 June 1971 on the Organization of and Rules governing Official Credit) be regarded as incompatible with the principle of fair competition inas­ much as it permits abuse by one or more undertakings of a dominant position within the common market or a substantial part of it?

10. On the question whether the tax exemp­ tion in question may be regarded as an abuse of a dominant position, the Spanish Govern­ 7. The defendant in the main proceedings, ment submits that, even if it is considered the Spanish Government, the Greek Govern­ that the State controls the public credit insti­ ment and the Commission have submitted tutions and that they are essentially under observations. The Court addressed a ques­ the same management which lays down a tion to those parties. single line of conduct, it can hardly be assumed that the degree of their involvement in general banking market in 1986 was so great as to constitute a dominant position. At present, their market share is less than 15%. Moreover, it is hardly conceivable that the conduct of the public authorities in granting tax concessions is evidence of the existence of a dominant position enjoyed by the banks 8. The defendant in the main proceedings, receiving those concessions or forms, from the local authority of Valencia, takes the their viewpoint, the expression of an abuse view that the reference is unnecessary. The of a dominant position. assessments for the financial years 1983,1984 and 1985 concerned a period which ante­ dated Spain's accession to the EEC whilst the assessment for 1986 is lawful.

11. In any event, the Spanish Government considers it more appropriate to examine the preliminary question with reference to the rules on State aid since the tax exemption 9. The Government of the Kingdom of Spain benefits a number of undertakings in a spe­ likewise points out that the questions sub­ cific economic sector. Account should be mitted may be relevant only in relation to taken of the fact that a tax exemption which the assessment for the financial year 1986 benefits only public banks may be capable of since Spain was not a member of the Euro­ pean Community until that time. It also points out that the assessments for subse­ 3 — Law No 39/88 of 28 December 1988 Ley de Haciendu! quent financial years have not been chal­ Locales (Law on municipality finances).

14. An examination of all the relevant provi­ sions shows that the public credit institu­ tions fulfil a function which meets the gen­ eral interest — administering the public 12. In this regard, the Spanish Government provision of credit — and that function points out that in the preamble to alone. The tax exemptions in question cannot Law 13/71, which came into force in 1986, produce a distortion of competition going the public provision of credit is described as beyond the sphere of the public provision of an indispensable function of the State credit owing to the limitation of this area of whereby savings deposits are channelled into activity. Commercial and industrial loans and investments, which, from the point of view personal loans are reserved to the banking of the public interest, deserves particular sector which is subject to competitive condi­ attention. Article 1 defines the public provi­ tions. In the public provision of credit the sion of credit for the purposes of the Law as: general interest outweighs the objective of 'All transactions carried out by the public making a profit, which is demonstrated by credit institutions ...'. It follows from that the objects clause (Article 2) of the Statute of provision that the public credit institutions the Banco Crédito Industrial SA. Finally, the may only effect transactions corresponding Spanish Government maintains that the tax to the provision of public credit and that all exemption in question is not disproportion­ their activities are covered directly by that ate. Law.

'The enjoyment by an entity charged exclu­ sively with the administration of public credit of an exemption from a local tax on the use or enjoyment of any premises situ­ ated in a municipality in the pursuit of a gen­ eral economic activity:

16. The Government of the Greek Republic (1)does not constitute an abuse of a domi­ takes the view that the Banco de Crédito nant position; Industrial SA does not fulfil any of the crite­ ria laid down by the case-law of the Court for identifying the existence of a dominant position. Consequently, there can be no abuse of such a position.

(2) does not constitute State aid incompatible with Article 92 of the EEC Treaty in so far as that exemption does not have the effect of distorting competition and its application is strictly limited to the sphere of the public provision of credit, without any profit-making purpose and without any effect on commercial or industrial credits granted as part of com­ petitive banking business;

17. The Greek Government considers that any reduction in State revenue, and therefore any exemption from taxation granted by a (3) if it is to be regarded as an abuse or as State measure, constitutes a form of aid. The aid, a derogation may in any event be relaxation of the Treaty rules provided for in made from the applicable provisions in Article 90 (2) in favour of undertakings

I-883

OPINION OF MR LENZ — CASE C-387/92

18. According to the Greek Government, public credit institutions are without any doubt undertakings entrusted by law or by other State act with a function of general economic interest consisting of the imple­ Subject to any contrary provision in the mentation of the State's economic policy, the Treaty, any form of State aid granted from safeguarding of the national currency policy public funds which distorts or threatens to and the maintenance of market equilibrium distort free competition by favouring certain by means of a programme for planning and undertakings or products must be considered directing the economy. Consequently, the to be incompatible with the Treaty. Conse­ rules on competition and the provisions on quently, the exemption provided for in Arti­ State aid must be applicable to public credit cle 29 of Law 13/71 of 19 June 1971 does not institutions with the modifications which are constitute a breach of Articles 85 to 94 of the necessary in order to enable their special Treaty since it concerns a taxpayer — a pub­ functions to be fulfilled and safeguarded. In lic credit institution ·—· which is charged with the view of the Greek Government, the tem­ administering services of general economic porary tax exemption granted to the Banco interest within the meaning of Article 90 (2) de Crédito Industrial SA did not constitute of the EEC Treaty.' an infringement of Articles 85 to 94 of the EEC Treaty.

19. The Greek Government therefore pro­ poses that the Court should answer the questions referred to it as follows: 20. The Commission first points out that the reference in the question to Articles 35 and 51 of the Acts relating to the accessions of the Kingdom of Spain and the Portuguese Republic bear no relation to the reasoning set out in the order for reference. The Com­ 'Considered in isolation, the exemption pro­ mission therefore proposes that this part of vided for in Article 29 of Law 13/71 the reference should not be answered. It also

22. The tax exemption in question should therefore be examined with reference to Article 92 rather than Article 86. Whilst mere enjoyment of a financial advantage can­ not constitute an abuse within the meaning of Article 86, the legality of granting such 24. On the question of a possible breach of advantages is expressly regulated in Arti­ Article 92 of the EEC Treaty, the Commis­ cle 92 et seq. Since the Banco de Crédito sion submits that, although a national court Industrial SA operates on the market and is may apply to the Court of Justice to ask in competition with other banks which are whether a certain measure may, by its nature, subject to taxation, the aid might distort, or constitute State aid within the meaning of threaten to distort, competition and is there­ Article 92 (1), the question whether or not fore incompatible with the common market the conditions for the application of that if trade between Member States is affected. provision are fulfilled must be examined in accordance with the procedure laid down for this purpose in Article 93 of the Treaty. It also points out that, by reason of the direct effect which the last sentence of Article 93 (3) of the Treaty has been recognized as hav­ ing, an infringement of that provision by a 23. In assessing the effects of the measure on Member State is a matter which may be competition and intra-Community trade it relied upon before the national court. must be borne in mind that in acceding to According to information before it, the mea-

5 — Commission Directive 80/723/EEC of 25 June 1980 (OJ 1980 L 195. p. 35). 6 — See OJ 1977 L 322, p. 30.

An exemption from the establishment tax (impuesto de radicación) granted to a public bank may constitute State aid incompatible with the common market by virtue of Arti­ 27. In order to answer the preliminary ques­ cle 92 (1) of the EEC Treaty although deter­ tions, the matters in issue must be defined. mination of the existence of conditions to be As is rightly submitted by the defendant in fulfilled for the application of that provision the main proceedings and by the Spanish must be carried out in accordance with the Government, only the assessment to munic­ special procedure provided for this purpose ipality tax for 1986 can be relevant for the in Article 93 of the EEC Treaty.' purposes of Community law. As regards periods prior to Spain's accession to the European Communities, Community law is not applicable. Another temporal limitation on the legal consequences of the answers to be given by the Court with regard to the 26. All the parties replied to the Court's facts of the main proceedings stems from the question concerning the consequences to be circumstance that, according to the explana-

I-886

BANCO EXTERIOR DE ESPAÑA

rions of the Spanish Government, the tax 29. To that rule Article 9 of the Act of assessments for 1987 have not been chal­ Accession allows certain exceptions, limited lenged and that the provisions regulating the in time: tax exemption in question were repealed at the end of 1989.

'The application of the original Treaties and acts adopted by the institution shall, as a transitional measure, be subject to the dero­ gations provided for in this Act.'

I - 887

OPINION OF MR LENZ — CASE C-387/92

Spain was entitled, for example, to apply 33. The questions referred to the Court until the end of 1992 the criterion of 'eco­ expressly seek an examination of the com­ nomic need' in relation to payment condi­ patibility of Article 29 of Law 13/71 with the tions for credit institutions whose principal provisions of Community law. According to place of business is in one Member State and the settled case-law of the Court, 9it is not whose branches are in another Member for the Court to rule upon the compatibility State. Special provisions are also provided for of a Member State's law with Community with regard to the number of supplementary law. Where such questions have been sub­ branches that are to be opened and the per­ mitted, the Court has, however, always inter­ centage of the resources taken up outside preted Community law to the effect that in banking circles by the credit institutions replying to the questions submitted it pro­ mentioned. Those derogating rules provide vides the referring court with the criteria it inter alia: needs to examine the compatibility of the national law in question with Community law.

'Throughout the period of the temporary derogations referred to above, the general or 34. The national court wishes to ascertain special facilities which result from Spanish whether a tax exemption for public credit legislative provisions or agreements existing institutions, such as that provided for in before accession between Spain and one or Article 29 of Law 13/71 may be maintained more of the other Member States will be when it is possible that it is contrary to Arti­ maintained and applied on a non­ cle 86 in conjunction with Article 90 or to discriminatory basis with regard to all the 8 Article 92. other Member States ...'.

37. The undertaking must have a dominant position on the common market or on a sub­ stantial part thereof, the territory of a Mem­ ber State being in principle considered to be 13 a substantial part of the common market. In order to determine whether an undertak­ ing occupies a dominant position, it is first 14 12 necessary to define the relevant market. 36. It is ultimately for the national court The banking sector in general must be taken to determine whether the conditions for the into account as the relevant market as well as application of Article 86 in conjunction with the public credit sector in particular. In the Article 90 are fulfilled. Both the national submission of the Spanish Government, it court and all the parties concerned assume must be assumed that in 1986 the public credit institutions in Spain, and consequendy the Banco de Crédito Industrial SA as well, 10 — Judgment in Case 172/80 Züchner v Bayerische Vereinsbank carried on their business activity solely in the [1981] ECR 2021. official credit sector and that they were 11 — Judgments in Case 155/73 Sacchi [1974] ECR 409; Case 90/76 Van Ameyde v UCI [1977] ECR 1091; therefore in only very limited competition Case 13/77 INNO v AJAB [1977] ECR 2815; Case 30/87 Bodson v Pompes Funèbres des Régions Libérées [1988] with the private banks, if at all. It would ECR 2479; Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung Unlauteren Wettbewerbs [1989] therefore appear to be appropriate to have ECR 803; Case C-41/90 Höfner and Elser [1991] ECR 1979; Case C-260/89 ERT [1991] ECR I-2925; Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889; Case C-18/88 GB-INNO-BM [1991] ECR I-5941; Joined Cases C-271/90, C-281/90 and C-289/91 13 — Judgment in Case 7/82 GVL v Commission [1983] Spain, Belgium and Italy v Commission ([1992] ECR ECR 483, paragraph 44; judgment in Case 322/81 Michelin I-5833 ); Joined Cases C-46/90 and C-93/91 Lagauche and v Commission [1983] ECR 3461, paragraph 28. Evrard ([1993] ECR I-5267) and Case C-69/91 Decoster ([1993] ECR I-5335). 14 —Judgment in Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 10 et seq., and judgment in 12 — Judgment in Case 90/76 Van Ameyde v UCI [1977] ECR Case 85/76 Hoffmann-La Roche v Commission [1979] 1091. ECR 461, paragraph 21 et seq.

38. According to the case-law of the Court, an undertaking has a dominant position where it holds a position of economic strength which enables it 'to prevent effective competition from being maintained on the relevant market by giving it the power to behave to an appreciable extent indepen­ dently of its competitors, customers and ulti­ 15 mately of its consumers'. 41. In principle, the starting point must be that it is the conduct of the undertaking in a dominant position which constitutes the cri­ terion for deciding whether it is being 16 abused. Through the application of Arti­ cle 90 (1), Member States are prohibited, 'by laws, regulations or administrative measures, [from putting] public undertakings and 39. It does not seem likely that the bank in undertakings to which they grant special or question occupied a position which corre­ exclusive rights in a position which the said sponded to those criteria since, as was undertakings could not themselves attain by explained during the oral procedure, at the their own conduct without infringing 17 material time there was in Spain a number of Article 86' . Consequently, a measure pro­ public credit institutions whose functions hibited by Article 90 (1) need not necessarily were in each case slightly different. It is also promote an abuse actually committed but unlikely that the tax exemption in question may also consist in an objective act such as, helped the bank in question to secure a dom­ for example, the extension of a monopoly by inant position.

16 — Judgment in Case C-18/88 GB-INNO-BM, cited above, 15 — See Case 27/76 United Brands v Commission, cited above, paragraph 20, and judgment in Case C-320/91 Paul Cor- paragraphs 63 to 66; see also Case 85/76 Hoffmann-La beau [1993] ECR I-2533, paragraph 10. Roche v Commission, cited above, paragraph 38. 17 — Case C-18/88 GB-INNO-BM, cited above, paragraph 20.

a State measure. 8However, the main pro 43. As regards the relationship existing ceedings do not concern a monopoly nor the between Article 90 (1) in conjunction with extension of a dominant position by a State Article 86 and Article 90 (2), it must be 19 measure. It is only if there is a measure observed that the Court has always allowed which is prohibited under the combined pro Article 90 (2) to be relied upon where the visions of Anicie 90 (1) and Article 86 that it application of Article 90 (1) in conjunction would be necessary to consider the relation with Article 86 is concerned, even if such

42. Article 90 (2) allows limited departure form of references for preliminary rulings from the competition rules for undertakings and the Court held that it was for the entrusted with providing services of general national courts to determine whether the economic interest or having the character of conditions laid down in Article 90 (2) were a fiscal monopoly. Those undertakings are 25 fulfilled. Consequently, it may be assumed also subject to the provisions of the Treaty, in particular the rules on competition laid down therein, but only in so far as the appli cation of those rules does not obstruct the performance, in law or in fact, of the partic ular tasks assigned to them.

20 Market.' and 38, and Case C-179/90 Mera Convenzionali Porto di Genova, cited above, paragraph 27. 24 — Case C-320/91 Paul Corbeau, cited above, paragraph 15, and Case C-18/88 CB-INNO-BM, cited above, paragraph 16. 25 — As was expressly held in the operative part of the judgment 18 — Case C-18/88 CB-INNO-BM, cited above, paragraphs 23 in Case C-320/91 Paul Corbeau, cited above. See also Case and 24.

I-891

OPINION OF MR LENZ — CASE C-387/92

that Article 90 (2) is directly applicable in the ly, in the form of measures adopted by the regulatory context of Article 90 in conjunc­ State. The so-called Transparency Direc­ 27 tion with Article 86. tive, adopted by the Commission on the basis of Article 90 (3), reflects the specific situation of public undertakings in relation to the State and the possibility of disguising the grant of State aid. As is clear from the preamble to that directive and as the Court has stressed, the essential objective of the 44. The reply to be given to the first part of directive is 'to promote the effective applica­ the question submitted by the national court tion to public undertakings of the provisions must therefore be that, subject to a definitive contained in Articles 92 and 93 of the Treaty 28 assessment of the facts by the national court, concerning State aids'. the tax exemption in question does not have the characteristic elements of an abuse of a dominant position on the common market or a substantial part thereof by a public undertaking.

The possible infringement of Articles 92 and 93

I-892

BANCO EXTERIOR DE ESPAÑA

47. Before the rules applicable in the matter rely directly on the combined provisions of of aid under Articles 92 and 93 are examined, Article 90 (2) and Article 92 before the the question arises, however, of the relation­ national court. The parties' answers to those ship between those provisions and Article 90 questions were essentially as follows. (2). If the limited exception from the compe­ tition rules for public undertakings entrusted with the provision of services of a general economic interest or having the character of a fiscal monopoly operates, it must be ascer­ tained whether this circumstance makes examination of the rules on aid unnecessary or whether Article 90 (2) may only be relied upon in the context of the rules on aid, in particular the procedure for supervising aid.

50. The Aynntaminto de Valencia took the view that the Banco de Crédito Industrial SA could not rely directly on Article 90 (2) in conjunction with Article 92 before the refer­ ring court.

I-893

OPINION OF MR LENZ — CASE C-387/92

Article 93 does not apply to State aid which in conjunction with Article 92 since the last- is justifiable under Article 90 (2). An individ­ mentioned provision is not directly applica­ ual may not rely directly on Article 90 (2) in ble and since, before applying Article 90 (2), conjunction with Article 92 directly before it must examine whether the aid contravenes the national court. Article 92. That examination falls within the exclusive competence of the Commission and must be carried out within the frame­ work of the procedure provided for in Arti­ cle 93. If the Commission's views do not coincide with those held by the Member State, then the Member State is at liberty to bring proceedings before the Court of Jus­ 52. The Government of the Greek Republic tice. also takes the view that Article 93 does not apply to aid to undertakings which is cov­ ered by Article 90 (2). To those undertakings the provisions of the EEC Treaty and in par­ ticular the rules on competition do not apply. Since it is a matter for the national court to assess whether the conditions for 54. At first sight the case-law of the Court the application of Article 90 (2) are fulfilled, of Justice on the effects of Article 90 (2) does the recipient of aid is entitled to apply to the not appear to be uniform. It was in quite an Court for a declaration that the aid in ques­ early case, taking the form of a reference tion does not therefore fall within the sphere from a national court, that the Court of Jus­ of application of Articles 92 and 93 because tice had to consider the question whether the provisions of the Treaty do not apply in 31 Article 90 (2) could have direct effect. The its case, in accordance with Article 90 (2). essential issue in that case was whether an individual could rely on Article 90 (2) in order to compel a (competing) public under- taking to comply with the rules on competi- tion. With regard to this issue the Court stated:

'Article 90 (2) does not, however, exempt a Member State which has entrusted such an operation to an undertaking from the prohi­ bition on adopting, in favour of that under­ 55. In a later judgment, given in 1982, 33the taking and with a view to protecting its Court, taking its lead from the judgment in activity, measures that restrict imports from Case 10/71, 34 did not allow Article 90 to be other Member States contrary to Article 30 37 applied in the context of the examination of of the Treaty.' the Treaty provisions on freedom of move- ment. The Court held that:

I-895

OPINION OF MR LENZ — CASE C-3S7/92

with regard to Article 90 (1) and 86, so that private businesses or also covered non­ Article 90 (2) cannot be considered to take profit-making institutions governed by pub­ precedence. lic law, the Court replied:

'Save for the reservation in Article 90 (2) of the Treaty, Article 92 covers all private and 59. On the relationship between Article 90 public undertakings ...'. (2) and Articles 92 and 93 there is very little 39 case-law of the Court. Case 52/76, which came before the Court by way of a reference for a preliminary ruling, concerned the clas­ sification of aid granted to an undertaking which possibly fulfilled the conditions of 61. Unfortunately, that statement does not Article 90 (2). Owing to the lack of sufficient enable an unambiguous reply to be given to factual information from the referring court, the question concerning the relationship the Court of Justice found that it was unable between those provisions, since the state­ to rule upon the nature of the undertaking or ment is itself susceptible of interpretation. on the legal consequences which ensued. However, 'reservation' could be understood However, the sequence followed by the as meaning that such a reservation operates 40 Court in its examination gives an indica­ within the context of the examination of tion that the special rule applicable to public another provision. undertakings must operate in the context of the examination of the aid and is not a mat­ ter to be examined at the outset.

62. The conclusion which may be drawn from the survey of the case-law on Article 90 (2) carried out above is that the question concerning the effects of Article 90 (2) can­ not be answered in the abstract but that it is 60. A finding made by the Court of Justice necessary to examine in each case all the in its judgment in the Steinike and Weinlig rules in the context of which Article 90 (2) 41 case is somewhat clearer. In answer to the must apply. question whether the expression 'undertak­ ings' in Article 92 of the Treaty meant only

64. Exceptions to that rule are laid down in paragraphs (2) and (3) in the sense that the criteria for identifying aid compatible with the common market are laid down in para­ graph (2) and the criteria for identifying aid which may be considered to be compatible 66. In the scheme of types of aid compatible with the common market are laid down in and incompatible with the common market, paragraph (3). One of the characteristics of Article 90 (2) could, by its nature, be Article 92 is that it is not directly applicable, included amongst the exceptions described in either as a prohibition of aid pursuant to Article 92 (2) and (3). The question whether 42 paragraph (1) or as a derogation pursuant particular circumstances may be brought to paragraph (2). It is not for the national under paragraph (2) or paragraph (3) courts to determine whether aid is compati­ depends on the degree of discretion which ble with the common market, this being the the Commission has in malting its assess­ exclusive responsibility of the Commission, ment. Finally, it is not necessary to deter­ subject to the supervision of the Court of mine which of those derogating rules is clos­ 43 Justice. est to Article 90 (2) since they are both applied under the supervision of the Com­ mission.

65. Competence and procedure in the matter of the examination of State aid by the Com­ 67. The comparability of the legal structure mission are governed by Article 93. There is of Article 90 (2) and Article 92 is, in my

42 — Judgment in Case 77/72 Capolongo v Maya [1973] ECR 611, paragraphs 4 to 6. 44 — Joined Cases C-72/91 and C-73/91 Stornali Neptun, cited above, paragraph 12; Casc C-189/91 Kirsammcr-Hack, 43 — Judgment in Case C-354/90 Fédération Nationale du Com- cited above, paragraph 14. merce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon v 45 — Judgment in Case 120/73 Lorenz v Germany [1973] ECR French State [1991] ECR 1-5505, paragraph 14. 1471.

In both cases the Commission is empowered to take action, not with regard to the under­ 68. In this assessment process account must taking which has been enabled to obstruct be taken of the interest of the Member States the rules of competition, but with regard to in using certain undertakings as instruments the Member State which is responsible for 50 of economic or fiscal policy and the interest the impairment of competition.' of the Community in maintaining the unity 48 of the common market. That balancing process may be carried out in the context of the supervision of aid. In the judgment which it gave in Joined Cases C-48/90 and 49 C-66/90 the Court gave its views on the comparable nature of the supervisory proce­ dure under Article 90 (3) and Article 93 from 69. The Court goes on to state that Arti­ cle 90 (3) enables the Commission 'to make an assessment, by way of decision, of the 46 — Judgment in Case 41/83 Italy v Commission [1985] ECR 873. compatibility with the Treaty of the mea­ 47 — See Case 41/83 Italy v Commission, cited above, para­ sures enacted or maintained in force by graph 30 at page 888. 48 — See Case C-202/88 France v Commission, cited above, para­ graph 12. 49 — Judgment in Joined Cases C-48/90 and C-66/90 Kingdom of the Netherlands and Others v Commission [1992] ECR 50 — See Joined Cases C-48/90 and C-66/90 Netherlands and I-565. Others v Commission, cited above, paragraphs 31 and 32.

I-898

BANCO EXTERIOR DE ESPAÑA

75. The essential difference between existing aid and the introduction or amendment of aid is that in the case of existing aid it is for 72. The procedure for examining the com­ the Commission to take the initiative patibility of aid by Member States with whereas, where new aid is introduced, it is Community law differs according to whether it is a matter of existing aid or of new aid. 52 — Case 78/76 Steinike and Weinlig, cited above, paragraph 9. 53 — Judgment in Case C-354/90 fédération Nationale du Com- merce Extérieur des Produits Alimentaires and Syndicat 51 — Joined Cases C-48/90 and C-66/90 Netherlands and Others National des Négociants et Transformateurs de Saumon v v Commission, cited above, paragraph 34. French State, cited above, paragraph 13.

I-899

OPINION OF MR LENZ — CASE C-387/92

C — Conclusion

80. In view of the foregoing considerations, I propose that the preliminary question should be answered as follows:

1. A tax exemption , such as that provided for by Article 29 of Law 13 / 71 , does not — subject to final fact-finding by the national court — have the charac-

I-900

BANCO EXTERIOR DE ESPAÑA

teristic elements of an abuse of a dominant position on the common market brought about by a State measure;