C-44/93

NAMUR-LES ASSURANCES DU CREDIT v OND

OPINION OF ADVOCATE GENERAL LENZ delivered on 22 June 1994 *

Mr President, 2. The Court d'Appel referred these ques­ Members of the Court, tions to the Court in proceedings for interim measures brought by the Belgian credit- insurance company Namur-Les Assurances du Crédit (hereinafter 'Namur') and Compagnie Belge d'Assurance Crédit (here­ inafter 'COBAC') against Office National du Ducroire (hereinafter 'the OND' ), the agency to which the advantages at issue were A — Introduction accorded, and the Belgian State. Essentially, the application for interim measures, which COBAC (but not, however, Namur) with­ drew after the order for reference was sub­ mitted to the Court, sought provisionally to restrain OND's activities in the new field.

OPINION OF MR LENZ — CASE C-44/93

17 June 1991, following the institution of the is administered by a board of directors, con­ main proceedings. sisting of a chairman, a vice-chairman and 18 members. Six of those members (and their alternates) are appointed at the proposal of the Prime Minister and the Ministers respon­ sible for Economic Affairs, Finance, Foreign Affairs, Foreign Relations, Foreign Trade, 5. Article 1 of the OND Law bestows legal and Development Cooperation. Each of the personality on the OND . Article 3, in the six board members represents on the board version in force at time of the events with of directors the Minister who nominated which this case is concerned and in the ver­ him. sion in force at the time when the application was made for interim measures (to which I shall refer as 'the 1991 amended version'), defined the OND's purpose as follows:

7. According to Article 16(1) of the OND Law, the delegates of the ministers are to inform the board of directors of the general policy to be pursued by the OND .

'Article 1 The Office National du Ducroire shall promote exports and Belgian invest­ ments abroad.

8. Article 16(2) provides that, when votes are held on the board of directors, those del­ egates may suspend decisions which, in their opinion, are unlawful or conflict with the Article 2 It shall carry out its task by means rules of the organization or the interests of of the following actions: the State. If a ministerial delegate suspends a decision, he is to report to the minister who conferred his office as board member upon him. The minister then has five clear days following the suspension of the decision in order to take a decision. If he fails to take a (1) The Office National du Ducroire may decision within the prescribed period, the provide guarantees so as to reduce the suspended decision becomes binding. risks attaching to exports and Belgian investment abroad, especially credit risks ...'.

to decide upon all transactions and the con­ those bonds (Article 7); its annual financial ditions relating thereto. It follows from Arti­ deficit was covered by the State; and it was cle 13(4) that, within limits to be determined exempt from the tax levied on insurance con­ by the board, the latter may delegate to the tracts (Article 23) and corporation tax (Arti­ General Manager or the Managers of the cle 23 and Article 94(2)(d) of the Law on OND the power to grant certain guarantees Income Tax in the version of the Law of mentioned in Article 3(2)(1). In order to do 11 April 1983). so, the board requires the consent of the Minister of Economic Affairs. However, board decisions relating to the acceptance of new risks within the meaning of Arti­ cle 3(2)(1) are to be submitted to the Minis­ ter of Economic Affairs pursuant to Arti­ cle 13(5). If he does not object within two clear days of the notification of such a deci­ sion, the decision becomes binding, subject to the provisions of Article 16. 12. Within the confines laid down in this manner by the OND Law, the OND's activ­ ities gradually expanded. For present pur­ poses, it is pointed out in this connection that the OND has collaborated with COBAC on a contractual footing since 1935. On the basis of the relevant contractual agreements, the OND had been active on the market in insurance for exports to western European countries from a date — which, 10. Under Article 10(1) of the Law, the however, cannot be accurately determined OND was entitled to enter into such collab­ from the information available to the Court oration with credit-insurance undertakings — until January 1989 only in certain excep­ as the Law allowed it do for this purpose, in tional cases. According to Article 2 of the such forms and on such conditions were laid version of the cooperation agreement of down by the Royal Decree. 30 March 1982, COBAC alone was entitled to insure commercial risks attaching to the export of goods and services to the following countries:

15. By letter of 27 September 1988, the OND terminated the cooperation agree­ ment 3on the ground that changes were to be expected as a result of the introduction of the single market and that issue could be the maturity of the credit for the transaction taken from any quarter at any time with the to be insured was in excess of five years; compatibility of the cooperation agreement with Article 85 of the Treaty of Rome.

the transaction to be insured related to industrial projects, articles of heavy equip­ 16. As appears from the documents before ment or works contracts; the Court, OND's board of directors resolved to terminate the agreement with COBAC on the same day. At the same time, the board decided to instruct the manage­ ment to take the necessary measures in order

the operation to be insured concerned a 3 — It is not absolutely clear whether the termination took effect transaction for which COBAC considered on 31 December 1988, as, according to the order for refer­ ence, the OND considered, or at an earlier date (October that it was not in a position to participate in 1988), in accordance with the wording of the letter of termi­ the risks as provided for in the cooperation nation in conjunction with the relevant provisions of the cooperation agreement. However, this is of no relevance to agreement. the present proceedings.

I-3834

NAMUR-LES ASSURANCES DU CRÉDIT v OND

to take up direct insurance on the European the 'instruments constituting the OND market in such a way as not to interfere with [should be amended] so as to harmonize the competition or to interfere with it as little as conditions of competition'. possible.

18. By letter of 1 February 1989, the four 21. Accordingly, in October 1989 they ministers informed the OND of the 'recom­ lodged a complaint with the Commission in mendations' which the working party had which they argued that the extension of the made and which the signatories, as appears advantages accorded to the OND to its from the letter, approved. As the order for newly adopted field of activity — insurance reference expressly states, the recommenda­ transactions relating to exports to western tions were that there should be a 'progres­ Europe — was incompatible with Arti­ sive, prudent and limited entry by the OND cle 92(1) of the Treaty. They also maintained into the market of insuring commercial risks that the Belgian State had failed to fulfil its connected with Belgian exports to western obligations under Article 93(3), according to Europe as from 1 February 1989' and that which the Commission is to be informed of

I - 3835

OPINION OF MR LENZ — CASE C-44/93

23. The Belgian State responded to the requests within the prescribed period. On 22 October 1992, the Commission notified counsel for Namur (and COBAC) that it was pursuing its investigations in the field of export credit insurance generally and those concerning the compatibility of the OND's '(1) Must Article 93(3) of the Treaty be activities with Articles 92 and 93 of the EEC interpreted as meaning that the granting Treaty in particular. It stated that it would or alteration of aid includes a decision notify the complainants of the progress made of a Member State to authorize, after with these investigations 'in the near future'. the entry into force of the Treaty, a Between the time when the complaints were public establishment, which previously received and the present date, the Commis­ engaged only incidentally in credit sion has taken no further steps. insurance for exports to other Member

I - 3836

NAMUR-LES ASSURANCES DU CRÉDIT v OND

States, to exercise that activity in future governing that establishment, a without restriction, so that the aid general policy entailing enlargement which was granted by that State to the of the scope of an aid; establishment under legislation predat­ ing the entry into force of the Treaty now applies to the exercise of that activ­ ity as thus extended?

I-3837

OPINION OF MR LENZ — CASE C-44/93

of aid within the meaning of the first sen­ Code], to prohibit temporarily the imple­ tence of Article 93(3). The national court is mentation of such a measure.' interested in the interpretation of that expression for the purposes of the prohibi­ tion which the third sentence attaches to the grant or alteration of aid:

28. More specifically, it is a question for the Cour d'Appel of legally categorizing the decision to extend the OND's field of activ­ ities if that decision means that 'the aid which was granted by [the State in question] 'The Member State concerned shall not put to the establishment under legislation predat­ its proposed measures into effect until this ing the entry into force of the Treaty now procedure has resulted in a final decision.' applies to the exercise of that activity as thus extended'. The national court therefore con­ siders the possibility that a case such as this may also involve the grant or alteration of aid where it is not the rules set out in the OND Law on the nature and content of the individual aids which are being altered but the OND's activities which those aid mea­ sures benefit. 27. The national court makes whether it grants the application made to it temporarily to debar the OND from carrying out activi­ ties in the new field dependent upon the applicability of that prohibition. It states as follows in this connection:

found it to be incompatible with the com­ light of certain matters raised in the body of mon market. Only if it is a question of the the third question. The opening words grant or alteration of aid will the prohibition emphasize the expression 'grant or alter­ on its implementation sought by Namur ation' of an aid as being the subject of the hold good (third sentence of Article 93(3)). interpretation sought from the Court. Parts (a) and (b) of the question refer respectively to a 'general policy' communicated by the ministerial delegates and to the ministerial delegates' not opposing a decision by the board of directors 'entailing enlargement of 30. The scope of the first question has the scope of an aid'. It might be considered hereby been defined. that the Cour d'Appel is seeking here to raise again — but in a new guise — the issue brought up in the first question, namely whether the enlargement of the OND's field of activity is to be regarded as the 'grant or alteration of aid'.

ing. The opening words raise a doubt in the

7 — Judgments in Case 72/79 Commission v Italy [I980] 6 — Sec paragraph 19 of the judgment in Banco de Crédito ECR 1411, paragraphs 23, 24 and 25, Joined Cases 67/85, Industrial (cited in the preceding footnote) and the judgment 6S/85 and 70/85 Van der Kooy v Commission [1988] in Case C-47/91 Italy v Commission [1992] ECR I-4145. ECR 219, paragraphs 36, 37 and 38, and Case C-303/88 Italy paragraph 25. v Commission [1991] ECR I-1433, paragraphs 11 to 14.

I - 3839

OPINION OF MR LENZ — CASE C-44/93

34. The interrelationship between the first third question from several points of view, and the third questions can therefore be which should be examined seriatim. First, characterized as follows: they contend that the question is concerned with the assessment of facts, with the result that the Court of Justice has no jurisdiction to answer it. The Belgian Government and the OND base themselves in this respect on the judgment in Hulst v Produktschap voor The third question seeks to establish whether Siergewassen. 8 in the circumstances of the present case the State responsibility on which the expression 'grant or alteration' of aid turns can be held to exist.

37. That view cannot be accepted. It is true, In contrast, the first question is concerned however, that it is for the national court to 9 with whether the decision (imputed to the ascertain the relevant facts. That can also State) on the enlargement of the OND's field consist of drawing inferences from particular of activity can be regarded objectively as the circumstances which are (also) of a factual 'grant or alteration of aid' within the mean­ nature for the purpose of resolving the ques­ ing of the Treaty. tion of fact which is material for deciding the case. To that extent, it is possible to say that there is an 'assessment of facts' which is a 10 matter for the national court alone.

to determine whether a sufficient relation­ Answering the third question ship for Article 92 et seq. exists in this case between the enlargement of the OND's field of activity which is at issue and the action of the State. The Court of Justice has jurisdic­ tion to provide such criteria (although it has no jurisdiction to apply Community law to a 1 specific case). 1 41. In replying to the third question, as resulting from its constructing and wording, parts (a) and (b) should be considered con­ secutively. This view is also supported by the fact that it is not apparent from the order for reference whether the Cour d'Appel itself was convinced that a general policy existed 39. Secondly, contrary to that which the Bel­ within the meaning of part (a) of the ques­ gian Government and the OND argue, the tion. third question does not relate to the inter­ pretation of national law, which, it is con­ ceded, is a matter for the national court 1 alone. 2 On the contrary, it is clear from the construction and wording of the question that the national court sought to refer to the Court of Justice the problem of the interpre­ 42. I can deal with part (a) of the question tation of Community law defined above. briefly. The only possible inference to be drawn from the wording of Article 16(1) of the OND Law in the version in point is that the general policy referred to there is binding on the OND , with the result that it has the effect of an instruction.

40. Lastly, it would not affect the admissibil­ ity of the question if, as the Belgian Govern­ ment and the OND maintain, the questions were based on factual hypotheses in dispute between the parties to the main proceedings. Indeed, it is for the national court to deter­ 43. In such case, responsibility on the part mine in the light of the particular circum­ of the State, as required by Article 92 et seq., stances of each case both the need for a pre­ cannot be doubted. liminary ruling in order to enable it to deliver judgment and the relevance of the 1 questions which it submits to the Court. 3

45. According to the wording of the ques­ tion, the preconditions were satisfied for the ministerial delegates to suspend the board's decision to extend the OND's activities pur­ suant to Article 16(2) of the OND Law and for the decision to be revoked by the super­ vising ministers. Consequently, the OND's decision could be issued only if it took account of the requirements of the Belgian State which was in a position under Arti­ cle 16(2) to enforce them. As a result, in the circumstances referred to by the Cour d'Appel, a decision such as the one at issue taken by the OND's board is to be imputed 47. The State guarantee affects each individ­ to the Belgian State for the purposes of Arti­ ual insurance contract in so far as no costs cle 92 et seq. for reinsurance, which would otherwise be necessary, arise. Also the exemption from tax on insurance contracts constitutes an advan­ tage which is effective for every individual insurance contract. Those two advantages take effect irrespective of the aggregate vol­ ume of the OND's business, of the profit­ The first question ability of individual transactions and of the aggregate result of OND's operations. The capital endowment and the grant of interest thereon also have an impact irrespective of the sector of activity, although they have less of an effect as the volume of business rises unless the capital endowment is increased 46. I. The background to the first question 15 commensurately. The exemption from corpo- is the fact that the five advantages ration tax and the coverage of the financial deficit mitigate the disadvantages flowing from a positive or negative trading result, 14 — See paragraph 37 of the judgment in Van der Kooy v Com- and this effect is all the more marked the fur­ mission, cited in footnote 7. 15 — See section 11 above. ther the result is at one extreme or the other.

50. The French and Netherlands Govern­ 49. II. Whether, in view of the 'variable ments take a different view. They point out geometry' of the aid, the decision enlarging in the first place that a distinction has to be the OND's field of activity can be regarded made in the sphere of credit insurance as the 'grant or alteration of aid' is in dispute between (a) risks which are reinsurable (ces- between the parties. The Belgian Govern­ sible) and hence can be taken over by private ment and the OND take the view that the insurance undertakings and (b) other risks. question should be answered in the negative. They examine in the light of this distinction First, they point out that the system of the potential effects on the market in credit advantages, as it has been laid down in the insurance of an enlargement of the establish­ OND Law since 1939, was not altered when ment's field of activity. The Netherlands the OND's field of activity was enlarged. Government states that hitherto the OND They grant that the alteration of the field of dealt exclusively, or virtually exclusively, activity may change the effects of the aid on with non-reinsurable risks. The decision to the market. However, they maintain that this extend its field of activity means that the is covered by the express provision of Arti­ OND can now accept reinsurable risks or, at cle 93(1) of the Treaty, according to which least, that its opportunities for so doing are the Commission is to keep under constant significantly increased. This does not consti­ review existing systems of aid. Changes in tute a negligible change, since it means that circumstances which, as in this case, might the OND has become a competitor for pri­ influence the effects produced by an aid vate credit insurers.

55. From this angle, it considers that the aid 52. The Commission and Namur also take for transactions relating to exports to Com­ the view that the national court's first ques­ munity countries would not have existed tion should be answered in the affirmative. before the Belgian State's 1989 decision. It is However, they do not rely on an appraisal of immaterial that the provisions of the OND the potential effects on the market of the Law covered those activities in abstracto and alteration at issue, but on the fact that it hence at the same time the aid for them: the enlarged the field of application of the aid. aid was not actually implemented until after the Treaty entered into force. Article 93(3) should be interpreted in the light of its objective and of the actual economic circum­ stances. Such an approach is consistent with the Court's case-law. Consequently, matters cannot turn on the fact that there is no (new) legislative measure. It is also irrelevant that even before 1989 the OND operated in the sector of exports to Community countries to 53. The Commission considers in this con­ the extent permitted by the agreement with nection that to apply the aid provided for in COBAC, since according to the wording of abstracto in the OND Law since 1939 for the national court's question that constituted the first time to new activities on the basis of merely an incidental activity. For all those

I - 3844

NAMUR-LES ASSURANCES DU CREDIT v OND

57. As regards the objective of Article 93(3), it should be observed on a general level that 59. Consequently, the expression 'grant or it supplements the review mechanism pro­ alteration of aid' characterizes an event vided for in Article 93(2). By means of the which, in view of its potential effects on the rule on notification laid down in the first common market, systematically necessitates sentence of Article 93(3), 'the draftsmen of a review of whether the advantage conferred the Treaty have sought to provide [the Com­ on the undertaking is compatible with the mission] with sufficient time for consider­ principles set out in Article 92(1). Those ation and investigation to form a prima facie potential effects on the common market opinion on the partial or complete confor­ mity with the Treaty of the plans which have 16 been notified to it'. In other words, the 17 — Judgment in Joined Cases 91 and 127/83 Heineken Brouw- purpose of the first sentence of Article 93(3) erijen v Inspecteurs der Vennootschapsbelasting, Amsterdam and Utrecht [1934] ECR 3435. paragraph 14; judgment in is to provide the Commission with an Case C-301/87 France v Commission [1990] ECR I-307, paragraph 17. 18 — Paragraph 4 of the judgment in Lorenz, cited in footnote 16. 19 — See the judgments in Case C-301/87 France v Commission, 16 — Judgment in Case 120/73 Lorenz v Germany [1973] cited in footnote 17, and in Case C-47/91 /Italy v Commis- ECR 1471, paragraph 3. sion, cited in footnote 6, paragraph 24.

I - 3845

OPINION OF MR LENZ — CASE C-44/93

62. According to the case-law of the Court 'As far as the role of the Commission is con­ of Justice, the tasks connected with these cerned, the Court pointed out in its judg­ roles are different in kind. As far as the ment in Case 78/76 Steinike und Weinlig v Commission's task of determining whether or not an aid is compatible with the common market, the Court held as follows in Steinike 23 20 — See the judgment in Case 74/76 Iarmelli v Meroni [1977] and Weinlig: ECR 557, paragraph 12 in fine. 21 — See, in addition to the judgment cited below and the judg­ ment in Steinike and Weinlig referred to therein, the judg­ ments in Case 77/72 Capolongo v Maya [1973] 611, in ¡anelli, cited in footnote 20, in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others [1992] ECR I-1847, in Case 17/91 Lornoy and Others [1992] ECR I-6523, in Case C-114/91 Claeys [1992] ECR 1-6559, in Joined Cases C-144/91 and C-145/91 Demoor 'In judging in these cases whether State aid is and Others [1992] ECR I-6613, in Joined Cases C-149/91 and C-150/91 Sanders Adour and Guyomarc'h Orthez compatible with the common market com­ Nutrition Animale [1992] ECR I-3899, in Case C-266/91 CELBI [1993] ECR I-4337, in Case C-72/92 Scharbatke plex economic factors subject to rapid [1993] ECR I-5509 and in Case C-189/91 Kirsammer-Hack [1993] ECR I-6185.

22 — Judgment in Case C-354/90 Fédération Nationale du Com- merce Extérieur des Produits Alimentaires [1991] ECR I-5505, paragraphs 9 and 10. 23 — Cited in section 61, first two sentences of paragraph 9.

I - 3846

66. The concept of aid which, accordingly, it is competent to the national courts to review, alongside the Commission, refers to the first part of the causal connection described in 64. As far as the tasks of the national courts Article 92(1) and resulting in distortion of are concerned, they have to ensure that the competition or effects on trade between aid measure is not implemented before the Member States or both. The concept of aid Commission has carried out the aforemen­ stands for the grant of certain unmarketlike tioned review. Consequently, that task is tai­ advantages attributable to the State which are lored to prevent, through the application of liable to improve the economic situation of 24 certain 'procedural criteria', the practical the undertaking which benefits from them in importance of the Commission's prerogative comparison with that of other undertakings. to check the compatibility of every new or In other words, it covers the effects to which altered aid with the common market from the State measure gives rise at the level of the

24 — Judgment in Capolongo, cited in footnote 21, paragraph 6. 25 -— Section 58 above.

I - 3847

OPINION OF MR LENZ — CASE C-44/93

undertaking or undertakings which benefit 68. Whilst that aspect is also to be checked by the advantages. The Court stated as fol­ by the national courts, the second part of the lows in the judgment in Denkavit: causal connection — the relationship between the aid and any distortion of com­ petition and effects on trade between Mem­ ber States — falls to the Commission alone. Naturally, the Commission's conduct is sub­ ject to review by the Community court.

26 — Judgment in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit [1980] ECR 1205, paragraph 31; see, to the same effect, the definition set out in the judgment in 29 — See the judgment in Case C-387/92 Banco de Crédito Banco de Crédito Industrial, cited in footnote 5, para­ Industrial, cited in footnote 5. graph 13, on the basis of the case-law on the ECSC Treaty. 30 — Judgment in Case 84/82 Germany v Commission [1984] 27 — My emphasis. ECR 1451, paragraph 12, and judgment in Case C-313/90 28 — Cited in section 61; paragraph 21 of the judgment (my CIRFS and Others v Commission [1993] ECR I-1125, para­ emphasis). graph 25.

I - 3848

NAMUR-LES ASSURANCES DU CRÉDIT v OND

those circumstances in the light of the crite­ 72. Yet, in the words used by the Court of ria set out in Article 92. 1 Justice, an individual is entitled to rely on Article 92 if the provisions of that article

'have been put in concrete form by acts hav­ 70. All those principles relating to the divi­ ing general application provided for by Arti­ sion of responsibilities, however, are subject cle 94 or by decisions in particular cases to a reservation which the Court has devel­ 34 envisaged by Article 93(2)'. oped in its case-law on the direct effect of the provisions of Articles 92 and 93.

I - 3849

OPINION OF MR LENZ — CASE C-44/93

not have direct effect. Moreover, that is con­ 76. IV. Against this background, it should sonant with the case-law on Article 85 of the first be observed that the change on the com­ Treaty. The Court of Justice recognizes that, mon market on which the French and Neth­ in areas covered by an implementing regula­ erlands Governments chiefly rely does not as tion within the meaning of Article 87 of the such enable one to speak of the grant or 36 Treaty, Article 85(1) produces direct effect alteration of aid. Such effects do not apper­ in relations between individuals and creates tain to the concept of aid. Changes in them rights directly in respect of the individuals may, it is true, be caused by the grant or concerned which the national courts must alteration of aid, but this is not necessarily 37 safeguard. As far as the sphere of aid is so. concerned, it follows from these consider­ ations that the application of Article 92 by national courts is not completely precluded by the Treaty, but depends on the Council's adopting appropriate provisions under Arti­ cle 94. There are no such provisions as regards the sector in question here.

I - 3850

NAMUR-LES ASSURANCES DU CRÉDIT v OND

79. However, a change did take place in so been taken if it had not been sought by the far as the limitation of the OND's activity Belgian State. with regard to exports to other Member States laid down in the agreement with COBAC has now been eliminated. On that ground, it should first be examined whether that limitation is part of the system of aid. If it is, it should next be considered whether 83. This seems probably to have been the that part of the system of aid was altered as a case according to the case-file. Article 15 of result of the decision on the enlargement of the cooperation agreement in the 1982 ver­ the OND's field of activity. sion produced to the Court provides that it was not to enter into force until the consent of the Minister for Economic Affairs had been obtained.

80. (a) Was the limitation of the OND's activity laid down in the agreement between the OND and COBAC part of the system of 84. Those considerations suffice in order to aid within the meaning of Article 93(1)? hold that the responsibility of the Belgian State for the limitation in question of the OND's field of activity is by no means out of the question. The task of definitively examining this question falls to the national court, which for this purpose can apply the 81. (aa) For this to be so, it presupposes first criteria elaborated with regard to the third that the limitation in question is to be question. imputed to the Belgian State.

89. Certainly, there would be no objection to such an approach in the case of a private 87. The system of aid also includes any pro­ undertaking. In such a case, a distinction visions relating to the use by the recipient of would have to be drawn in the way aid of the funds granted by the public described between the system of aid, on the authorities. Depending on its use, the aid one hand, and the actions of the undertaking may have quite different effects — on the by means of which the undertaking utilizes undertaking itself and consequently on the the advantages of the scheme of aid, on the common market. In the instant case, a provi­ other. sion of the system of aid concerning the OND's field of activity would fall into that category of provisions. The limitations laid down therein on the OND's field of activity would constitute at the same time limitations on the use of the aid. 90. However, in the present case it is doubt­ ful whether such a distinction is appropriate. In particular, I regard it as dubious whether the analysis of the present case can be linked solely with Article 3(2)(1) and Article 10(1) of the OND Law.

88. In attempting to answer on this basis the 41 question raised earlier, one might be tempted to infer from a comparison of Arti­ cle 3(2)(1) and Article 10(1) of the OND Law that that law alone constitutes the basis 91. This is because the Belgian State cannot of the advantages and hence the sole system only determine the legal framework of the of aid. Seen from that angle, the agreement activity of the OND , but can involve itself in its very activity by means of the powers described in the opening part of this Opin­ ion. If the limitation of the OND's field of 40 — Cf. the Opinion of Mr Advocate General Darmon in Joined Cases 166/86 and 220/86 Insh Cement v Commission activity contained in the cooperation agree­ [1988] ECR 6487, sections 2) to 31. ment could be imputed to the Belgian State, 41 — In section 86 above. this would constitute such involvement.

State. The fact that the State involves itself directly in the management of undertakings was known to the draftsmen of the Treaty, since they laid down in Article 90(1) a spe­ cial provision for 'public undertakings' (undertakings in respect of which such a 42 possibility exists ). However, that provision merely declares Articles 7 and 85 to 94 to be applicable to such undertakings. It was not 97. The following demarcation line follows thought appropriate to subject them to dif­ as regards the present case: if the measure in fering provisions. question constitutes the expression of the State interest in defining its economic and social policy, it is part of the system of aid, as it has effects on the scope of the aid. If, in contrast, it constitutes the expression of a commercial interest, it is a corporate mea­ sure, which has effects only on the nature 95. In my view, the limits of the system of and extent of the utilization of the system of aid are to be determined with the assistance aid. of the criteria to be elaborated below which

43 — Section 66 above and footnote 26. 42 — See the ninth recital in the preamble to Commission Direc­ 44 — Cf. the Opinion of Mr Advocate General Darmon in Case tive 80/723/EEC of 25 June 1980 on the transparency of C-185/91 Reiff [1993] ECR I-5823, paragraphs 33 to 38, financial relations between Member States and public which contains examples from the case-law confirming this undertakings, OJ 1980 L 195, p. 35. analysis of the EC Treaty.

I - 3853

OPINION OF MR LENZ — CASE C-44/93

98. How can it be determined which of capital constitute aid in a given case. In these two alternatives applies here? fact, there is a parallel between the two cases. In both cases, it is necessary to categorize a State measure which, on the face of it, could be classed either as an aid measure or as a commercial measure.

I-3854

NAMUR-LES ASSURANCES DU CREDIT v OND

49 — See the judgments in Case 48/72 Brasserie de Haecht v Wiikin and Janssen [1973] ECR 77, Case 127/73 BRT v SABAM [19741 ECR 51, Case 99/79 Lamame v Etos[1980] 47 — In the correspondence between the Belgian Government ECR 2511 and Delinutis, cited in footnote 37. and the Commission, the Belgian Government argued from 50 — See Notice 93/C 39/05 on collaboration between national outset that the aid in question was existing aid. The Com­ courts and the Commission in applying Articles 85 and 86 mission did not question that view. of the EEC Treaty (OJ 1993 C 39, p. 6), in which the Com­ 48 — Judgment in Case C-301/87 France v Commutimi [1990] mission sets out the various possibilities on the basis of the ECR I-307, paragraphs 18 to 23. judgments cited in the previous footnote.

I - 3855

OPINION OF MR LENZ — CASE C-44/93

meaningful to refer the national court to of 13 July 1990 in Case C-2/88 Zwartveld such a decision. [1990] ECR I-3365, paragraph 18).'

108. It must be emphasized that these con­ 106. In contrast, I consider that the decision siderations are based on the practical utiliza- in Delimitis 51 can be applied to the present tion of such information, since such informa­ situation. In that case the Court held that the tion can be neither definitive nor binding for national court may, within the limits of the the national court. applicable national procedural rules and sub­ ject to Article 214 of the Treaty,

109. (b) If the national court finds in the light of those criteria that the limitation of the OND's field of activity as determined by the cooperation agreement is part of the sys­ 'contact the Commission where the concrete tem of aid, it will have in turn to be exam­ application of Article 85(1) or of Article 86 ined whether that part of the system of aid raises particular difficulties, in order to was altered by the decision enlarging the obtain the economic and legal information 52 OND's field of activity. which that institution can supply to it'.

The second question

113. V. The reply to the first question should therefore be as follows:

114. In its second question, the Cour d'Appel asks whether the two-month period from receipt of notification laid down in the 53 Lorenz case-law during which the Com­ mission is to act and on the expiry of which the aid becomes existing aid if the Commis­ A decision of a Member State to authorize, sion fails to act, can start to run even in the after the entry into force of the EEC Treaty, absence of notification if the Member State a public establishment, which previously concerned answers questions from the Com­ engaged only incidentally in credit insurance mission concerning particulars of the system for exports to other Member States, to exer­ of aid at issue. cise that activity without restrictions so that the aid which was granted by that State to the establishment under legislation predating the entry into force of the EEC Treaty now 53 — Case 120/73 Lorenz v Germany, cited in footnote 16, which was confirmed, for instance, in Case 84/82 Germany v applies to the exercise of that activity as thus Commission, cited in footnote 30.

I - 3857

OPINION OF MR LENZ — CASE C-44/93

115. In this connection, the Cour d'Appel 117. The Court states as follows in the rele­ wishes the following features of the present vant passages of the judgment: case to be taken into account:

I-3858

NAMUR-LES ASSURANCES DU CREDIT v OND

The latter, however, could not be regarded as 118. The Court concluded from this as fol­ acting with proper diligence if it omitted to lows: define its attitude within a reasonable period.

'If the Commission, after having been informed by a Member State of a plan to grant or alter aid, fails to initiate the conten­ It is appropriate in this respect to be guided tious procedure provided for in Article 93(2), by Articles 173 and 175 of the Treaty which, by giving notice to the Member State con­ in dealing with comparable situations, pro­ cerned to submit its comments, the latter vide for a period of two months. may, at the expiration of a period sufficient to enable the aid to undergo a preliminary investigation, grant the proposed aid, pro­ vided that it has given prior notice to the Commission, and this aid will then come 5 under the system of existing aids.' 6

When this period has expired, the Member State concerned may implement the plan, but the requirements of legal certainty involve that prior notice should be given to the Commission. 54 119. It follows from the construction of the above that two requirements must be met in order to start the two-month period running within which the Commission should act.

120. First, notification must be given which puts the Commission in a position to decide what action to take with knowledge of the facts.

122. The national court's question raises the problem as to whether for the purposes of the first requirement the answer to a request for 'Once it has established that aid has been information from a Member State may be granted or altered without notification, the equated with notification. If that were the Commission therefore has the power, after case, as the OND and the Belgian and giving the Member State in question an French Governments argue it is, it could opportunity to submit its comments on the only result in the application of the Lorenz matter, to issue an interim decision requiring formula, if the second of the two aforemen­ it to suspend immediately the payment of tioned requirements were satisfied as well. such aid pending the outcome of the exami­ However, that is not the case here, since the nation of the aid and to provide the Com­ OND's field of application was extended mission, within such period as it may specify, without the Belgian State's having at any with all such documentation, information time made that action dependent on a Com­ and data as are necessary in order that it may mission decision. On the contrary, since the examine the compatibility of the aid with the beginning of its correspondence with the common market. Commission it took the view that the case related to existing aid within the meaning of Article 93(1). Consequently, even if the informative value of the replies to the Com­ mission's request for information was such as to enable it to be treated as notification, The Commission has the same power in this case would not be on all fours with the cases where it has been notified of aid but case contemplated by Lorenz. the Member State in question, instead of awaiting the outcome of the procedure pro­ vided for under Article 93(2) and (3) of the Treaty, has instead proceeded to put the aid into effect, contrary to the prohibition con­ tained in Article 93(3).

(1) A decision of a Member State to authorize, after the entry into force of the EEC Treaty, a public establishment, which previously engaged only incidentally in credit insurance for exports to other Member States, to exercise that activity without restrictions so that the aid which was granted by that State to the estab­ lishment under legislation predating the entry into force of the EEC Treaty now applies to the exercise of that activity as thus extended, is to be regarded as the grant or alteration of aid,

58 — My emphasis.

I-3861

OPINION OF MR LENZ — CASE C-44/93

(i) if the decision on the establishment's former — narrower — field of activity is to be imputed to the State and

(ii) if a private undertaking of comparable size to the public establishment in question in a similar situation would not have taken such a decision to restrict its activity on commercial grounds.