C-204/97

PORTUGAL V COMMISSION

OPINION OF ADVOCATE GENERAL ALBER delivered on 18 May 2000 1

I — Introduction I I — The legal bases

2. Article 92 of the EC Treaty (now, after amendment, Article 87 EC) states mier alia that:

' 1 . Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain 1. By the present action for annulment undertakings or the production of certain Portugal opposes a decision of the Com- goods shall, insofar as it affects trade mission by which the latter authorised, by between Member States, be incompatible declaring that it raised no objections to, aid with the common market. newly granted by France for liqueur wines and brandy. The pleas in law — the infringe- ment of essential procedural requirements and of the Treaty — are based above all on the accusations that the Commission had, when assessing the aid, not taken sufficient 2. ... account of the French system of differential taxation of liqueur wines and natural sweet wines — liqueur wines are taxed at the rate of FRF 1 400 per hectolitre, that is FRF 9 or about EUR 1.37 per bottle, whereas natural sweet wines are taxed at 3. The following may be considered to be FRF 350 per hectolitre, that is FRF 2.25 or compatible with the common market: about EUR 0.34 per bottle. Besides, it was not clear under what conditions the aid was allocated.

1 — Original language: German.

3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant ... aid. If it considers that any such plan is not compat- 5. In protest at the higher taxation of their ible with the common market having products, producers of the liqueur wines regard to Article 92, it shall without delay Pineau des Charentes, Floe de Gascogne initiate the procedure provided for in and Macvin du Jura refused to pay excise paragraph 2. ...' duty in 1993 and in the first half of 1994 in so far as it exceeded the rate of taxation imposed on natural sweet wines. At the same time, the national association of producers of liqueur wines with registered 4. Article 95 of the EC Treaty (now, after designation of origin lodged a complaint amendment, Article 90 EC) states that: with the Commission against the taxation system applied in France to liqueur wines. In the middle of 1994 the liqueur wine producers ended their refusal to pay taxes. The chairman of the association, in a 'No Member State shall impose, directly or newspaper interview, gave as the reason indirectly, on the products of other Mem- for this that the French Government had, as ber States any internal taxation of any kind redress for the differential taxation, held in excess of that imposed directly or out the prospect of annual compensation indirectly on similar domestic products. and refunds for the period 1994 to 1997.

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8. In February 1996 the AEVP was notified informally that there were plans to initiate against France the formal administrative 7. In response to the complaint lodged by procedure provided for in Article 93(2) of the AEVP, the Commission, on 12 April the EC Treaty. Since this did not happen, 1995, called upon the French authorities to however, the AEVP, on 29 May 1996, inform it of the planned aid. France's called upon the Commission to initiate the Permanent Representative complied with procedure provided for in Article 93(2) of this request by letter of 17 July 1995, the EC Treaty without delay and to inform according to which the French Government the AEVP of the status of the investigations was planning aid for liqueur wines and made so far of the planned aid. On 19 July potable spirits ('eaux de vie') with regis- 1996 and 2 September 1996 the AEVP tered designation of origin. In answer to repeated this request. Finally, by letter of further queries by the Commission of 25 September 1996, the AEVP, in accord- 10 August 1995, 31 October 1995, 30 Jan- ance with Article 175 of the EC Treaty uary 1996, 3 June 1996 and 12 August (now Article 232 EC), called upon the Commission to act. 1996, France's Permanent Representative sent it additional information on the plan- ned aid on 6 October 1995, 12 December 1995, 14 February 1996, 26 April 1996, 10 July 1996 and 30 September 1996. The Commission's letter of 30 January 1996 contains the following passage: 3. The Commission's decision

'After a preliminary examination, it tran- 9. On 6 November 1996 the Commission spires that the latter (information) is not decided to raise no objections to the aid,

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'Community framework for State aid for marketing conditions for agricultural pro- research and development', 6which men- ducts. 11 Both instruments directly concern tions in the section relevant here the the promotion of relevant schemes by possibility of authorisation by virtue of European agricultural funds. Article 92(3)(c) of the EC Treaty, but otherwise requires a comprehensive assess- ment taking into account considerations of competition and trade, 7and to the 'Com- munity guidelines on State aid for small and medium-sized enterprises', 8 which define this type of enterprise and set upper 14. Since France had promised to observe limits for promotion, within which the these regulations, the Commission came to Commission may authorise aid. the conclusion that all elements of the aid fell under Article 92(3)(c) of the EC Treaty and accordingly decided to raise no objec- tions.

15. The Portuguese Republic brought an action against this decision on 29 May 1997.

— annul the Commission's Decision of 6 November 1996 concerning State aid N 703/95 — France,

1. Admissibility

— order the defendant to pay the costs.

Arguments of the parties

19. The Commission contends that the Court should: 21. The Commission takes the view that the action is in part inadmissible. The applicant felt that the unlawfulness of the Commission's decision arose from the fact that the aid in question intensified the — dismiss the action as inadmissible, or in supposedly discriminatory effect of the the alternative as unfounded, in so far French system for taxing natural sweet as the applicant relies on Article 92 in wines and liqueur wines. However, discrim- conjunction with Article 95 of the inatory taxes were to be assessed in accor- Treaty, dance with Article 95 of the Treaty. The Commission could object to them only by way of Treaty infringement proceedings in accordance with Article 169 of the EC Treaty (now Article 226 EC), not within the framework of a decision on aid in — dismiss the action otherwise as unfoun- accordance with Article 93 of the Treaty. ded, The decision to initiate Treaty infringement proceedings lay exclusively with the Com- mission and was not open to judicial review. With this plea Portugal was there- fore attempting to go beyond the scope of — order the applicant to pay the costs. the Community system of legal protection.

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was unavoidable whenever the Commis- They were the object of complaints to sion encountered serious difficulties during the Commission by other producers examination of an aid scheme. from two Member States.

27. By bringing forward detailed examina- — According to the published statements tion of the planned aid from the adminis- of the producers' associations benefit- trative procedure to the preliminary stage, ing from the aid, the latter served as the Commission had distorted the proced- compensation for the discriminatory ural rules of Article 93 of the EC Treaty taxation of liqueur wines. and in so doing disregarded the procedural guarantees for other parties, who might have contributed their views.

— The French G o v e r n m e n t had announced the planned aid not on its own initiative but only after being 28. In the applicant's opinion it is obvious requested to do so by the Commission. that the Commission had not been able to affirm the compatibility of the planned aid with the Treaty immediately within the framework of the preliminary examination and that it had therefore encountered — The Commission had asked the French serious difficulties when examining the Government for guarantees and further aid. An investigation lasting almost 19 explanations, which had led to amend- months, and including lengthy correspon- ments and adaptations of the aid dence between the Commission and the originally planned. French Government, had been necessary before the Commission adopted the con- tested decision.

infringement of Article 93 of the EC Treaty period. This was, however, in the Commis- by the Commission. Since the Commis- sion's opinion, not the case here. sion's preliminary examination period is intended only to enable a prima facie opinion to be formed on the compatibility of planned aid with the common market, the Commission should not have author- ised the planned aid solely on the basis of the preliminary examination. Because the 34. Member States' notification of planned Commission refrained from initiating the aid was often incomplete and imprecise on procedure under Article 93(2) of the EC unimportant points. Strictly speaking, it Treaty the other parties to the proceedings was not really information within the had been unable to present their points of meaning of Article 93(3) of the EC Treaty view to the Commission, with the result but a report to the Commission on the that the Commission had not been fully measures which a Member State intended informed when it took its decision. Finally, to adopt. The Commission therefore had to the course and duration of the preliminary seek additional information and confirma- examination should alone have compelled tion during the preliminary examination initiation of the administrative procedure. period, in order to harmonise the planned aid in detail with the requirements of Community law. Such fine-tuning, how- ever, concerned, as in the present case, only secondary aspects and arrangements for implementing the aid. The Commission 32. At the hearing, the representative of the Spanish Government stressed that it was by therefore had to be granted a certain no means sufficient for the French author- discretion regarding the surmountability ities merely to give their assurance that the of difficulties when examining notified aid aid did not compensate French liqueur- schemes. After all, the difficulties could wine producers for the tax disadvantage also be of minor significance. compared with natural sweet wines. On the contrary, the Commission had been bound to look into this accusation. In view of the unsatisfactory information from the French this could only have been done by way of a procedure under Article 93(2) of the EC Treaty. 35. Besides this, the Commission is of the opinion that the two-month period for initiating the administrative procedure does not begin to run until such time as the Commission has all the documents neces- sary for examining the compatibility of aid 33. The Commission took the view that the with the Treaty. The Commission refers in formal administrative procedure always this connection to the judgment in had to be initiated if serious difficulties Case C-301/87. 13 arose when examining the compatibility of aid with the Treaty or if the difficulties which had arisen could not be overcome by 13 — Judgment of the Court of 14 February 1990 France v Commission (Boussac) [1990] ECU I-307, at paragraph 27 the end of the preliminary examination et seq.

37. The French Government first of all takes the view that it could not be inferred from the judgment in the Lorenz case 14 that the preliminary examination period was generally and absolutely restricted to two months. The Commission's obligation to initiate the administrative procedure Analysis depended solely on whether it encountered serious difficulties when examining the compatibility of the planned aid with the Treaty. 40. On the question under what conditions the Commission is obliged to initiate the formal administrative procedure under Article 93(2) of the EC Treaty, there is firstly the time element, i.e. the question of 38. The French Government assumes that, observing the two-month limit for comple- in view of the legal and factual circum- tion of the preliminary examination period. stances of the case, the long preliminary Secondly, the substantive requirements for examination period did not constitute a compulsory initiation of the administrative breach of Article 93(2) of the EC Treaty. procedure as reflected in previous Court of There had been dialogue between the Justice case-law are to be discussed. French authorities and the Commission, which had begun not as usual with the notification of a fully worked-out aid scheme but rather at the planning stage of the future aid. The two-month period commencing only upon notification there- 41. Expiry of the two-month limit does not fore had to be calculated from the French in itself automatically oblige the Commis- Government's letter of 23 September 1996.

15 — Commission Regulation (EEC) No 3233/92 of 5 Novem- 14 — Judgment in Case 120/73 (quoted in footnote 12). ber 1992 (OJ 1992 L 321, p. 11).

42. This explains the judgment in Case 84/82 18 on the Commission's deci- sion not to raise any objections to the 44. In the present case, contact lasted Belgian aid. There, too, the concern was to almost 19 months. In the course of this guarantee the rights of other parties to the dialogue, France, at the Commission's proceedings, in particular the applicant request, refrained from granting aid for Member State, Germany. The Court of investment in stock holding. 20 Besides this, correspondence between France and the Commission was restricted to giving more 16 —Judgment i n Case 120/73 (quoted in footnote 12). precise information about the plan. In the 1 7 — Judgment in Case 120/73 (quoted in footnote 12, at Matra case 21 the Court ruled out that paragraph 4). 1 8 — J u d g m e n t of 20 Mareli 1984 Germain v Commission [19841 BCR 1451, at paragraphs 13 ct'seq.; similarly in the judgment of 15 June 1993 in Case C-225/91 Matra v Commission [1993] ECR I-3203 and implicitly also in the 19 —Judgment in Case 84/82 (quoted in footnote 18, at para- judgment of the Court of First Instance of 28 September graph 14 et seq.). 1995 m Case T-95/94 Sytraval v Commission [1995] 20 — Commission's request in letter of 3 June 1996, point 6; ECR II-2651 and in the judgment of 2 April 1998 on the agreement in letter from the French authorities of 10 July related appeal. Case C-367/95 P Commission v Sytraval 1996, point 6. [1998] ECR I-1719, in which a processing period of 51 21 —Judgment in Case C-225/91 (quoted in footnote 18, at months was involved. paragraph 38).

merely supplementing information and over, showed the situation on that market details was enough to constitute serious to be difficult. The more detailed investiga- difficulties, requiring instead substantial tion of the markets concerned, which the amendments complying with conditions Court considered necessary, could only be imposed by the Commission. Since the carried out as part of the procedure under Commission conceded only when ques- Article 93(2) of the EC Treaty. tioned at the hearing that the correspond- ence had led to any amendments at all, it is to be assumed that the Commission at least considered the amendments insignificant. There is hardly any way of checking this appraisal of the situation since in the present case there is no precise information as to the significance of the amendments within the overall context of the aid. It can, however, be concluded from the correspon- dence between France and the Commission that only a fraction of the total 46. In the present case, too, the Commis- FRF 5.7 million of investment aid from an sion, when applying Article 92(3)(c) of the o v e r a l l v o l u m e of aid of some EC Treaty, had been compelled to make FRF 24.6 million had been estimated for judgments about the common interest, to this particular element, and that therefore which the aid could not run counter. presumably less than 10% of the volume of Although it pointed out that the guidelines aid was involved. It seemed justifiable if the it had mentioned 23 already finalised in Commission had not taken this — the sole concrete form the conditions enabling obvious amendment of the scheme — as authorisation of the present aid in view of cause to initiate the procedure under Art- this derogation, the Commission usually icle 93(2) of the EC Treaty. retained some latitude within these texts, allowing it to take into account the parti- cular circumstances of the aid in each case. The 'Framework for national aids for the advertising of agricultural products' and the 'Guidelines for State aid in connection with investments in the processing and 45. There would, however, have been cause marketing of agricultural products' do to initiate the procedure under Art- admittedly seem to leave no room for icle 93(2) of the EC Treaty if — as in the discretion. However, there is at least some judgment in the Cook case — 'the assess- scope for considering, in the present case, ments on which the Commission relied, ..., whether these guidelines do not fall short of gave rise to such difficulties as to justify the the requirements of Article 92(3)(c) of the initiation of that procedure'. 22 The aid in EC Treaty, giving cause to fall back on the that case concerned markets for specific Treaty directly. For, as the Court found in steel foundry products, whereas the Com- the Deufil case, texts of this type could only mission only had available general data on constitute 'guidelines setting out the course the steel foundries sub-sector, which, more- of conduct which the Commission intends

to follow', but 'not derogate from the against the aid and the taxation system by provisions of Articles 92 and 93 of the the AEVP and the Spanish association of Treaty'. 24 Moreover, the guidelines on the sherry producers. Furthermore, in the promotion of investment seem, even from interim, the Commission obviously their wording, only to lay down an abso- assumed itself that more detailed examina- lute minimum standard. tion of the planned aid was necessary. At any rate, the reason it gave the French Government for its request for further information was the fact that a thorough examination ('examen approfondi') was necessary. At least one Commission employee even gave the AEVP verbal notice shortly afterwards of the initiation of the 47. At the same time there was cause to pay procedure under Article 93(2) of the EC particular attention to the extent of this Treaty. Finally, against this background, the margin of discretion. In the Treaty infringe- lengthy duration of the proceedings also ment proceedings giving rise to the judg- has to be regarded as a further indication of ment in Case 196/85, 25 the Commission serious difficulties in assessing the market remained convinced that France, through situation. its differential taxation of natural sweet wines and liqueur wines, discriminated against imported products. Although the Court regarded this discrimination as jus- tified within the framework of Article 95 of the EC Treaty it should be noted that because of this taxation the competitive 48. However, none of this would compel position of liqueur wines on the French initiation of the procedure under Art- market is already burdened. 26 The tax icle 93(2) of the EC Treaty if the Commis- strike of the French producers of Pineau sion could have fallen back on investiga- des Charentes, Floe de Gascogne and tions of the French market for liqueur Macvin du Jura, and the complaint lodged wines showing that the aid does not run with the Commission by the association of counter to the common interest in accord- French producers of liqueur wines with ance with Article 92(3)(c) of the EC Treaty. registered designation of origin confirm this In the present proceedings, however, there appraisal of the situation. The calling off of is nothing of the sort apparent. The Com- the tax strike once the disputed aid was mission merely claims that the general promised compels one to assume that the measures it had mentioned were based on aid gives these producers a competitive appropriate investigations, and points out, advantage over foreign producers, as do the besides, that it has insufficient capacity for complaints lodged with the Commission such investigations on a case-by-case basis.

products' in the letter of 20 October — On the fundamental nature of the pro- 199527c o n tain a basis for market-specific cedural infringement investigations. They refer to general invest- igations of the markets concerned which preceded the other Commission decision to be applied analogously when assessing aid — No 94/173 28 on the selection cri- teria to be adopted for investments for improving the processing and marketing Arguments of the parties conditions for agricultural and forestry products. This decision merely contains, in section 2.11 of the Annex, general rules for restricting the part-financing by the 52. In the alternative, the Commission Community of schemes in the wine and points out with reference to the judgment alcohol sector. The market for liqueur in Case 142/87 30 that even initiating the wines and natural sweet wines in France administrative procedure would not and receives no particular mention. could not have led to any different result. The decision terminating the administrative procedure would at any rate contain the same elements found in the contested 50. In so far as it is referred to by the decision and aimed at ensuring compliance French Government, Community aid for with the mandatory provisions of the law Madeira is not based on any obvious on the granting of aid. The applicant had investigations of the French market either. given no indication how the submissions of Regulation No 3233/92 merely contains other parties to the proceedings could have rules for implementing Regulation (EEC) influenced the Commission's decision. Fail- No 1600/92, 29 the economic considera- ure to initiate the administrative procedure tions of which are for their part based therefore did not constitute infringement of above all on the exceptional remote situa- an essential procedural requirement. tion of Madeira.

was impossible to tell whether the decision 56. The present case shows, however, that would have been different if the procedural there is no room for such an analogy if the rules had been observed. Commission has to initiate the procedure under Article 93(2) of the EC Treaty. If all that were involved was a hearing of known facts, then the 'serious difficulties' required for initiation of the procedure did not exist. What was rather the case here was that the Commission failed to obtain any informa- tion that could have become the subject of Analysis a hearing. There is therefore always a fundamental breach of procedure if the Commission fails to initiate, where so required, the procedure under Article 93(2) of the EC Treaty. The Commission's deci- 54. A breach of procedure only results in sion is therefore to be set aside because the the annulment of a decision if it is a Commission did not initiate the procedure fundamental breach. under Article 93(2) of the EC Treaty despite the fact that serious difficulties arose during the examination.

sion's decision of 6 November 1996, in the In particular it was not known how aid for form in which it was published in the advertising was allocated and which Official Journal. This contained no analysis research projects were supported using of the relevant market or the conditions of which criteria. The scope of the technical competition in that market. Nor had the support and the conditions for granting Commission, in the published decision, investment aid could not be identified. undertaken any assessment of the trade currents within the Community or the effect on the market of the planned aid. Finally, no indication was given of the legal bases either. 61. The Commission stresses that only the complete text, as communicated to the French Government, counts for the suffi- ciency of the statement of reasons within the meaning of Article 190 of the EC 59. The applicant does admittedly take the Treaty. The publication of an abstract in view that its action is directed only against the Official Journal was voluntary and the decision as published in the Official served merely to inform interested third Journal since certain consequences in terms parties. Those concerned could use this of procedural law are attached to publica- information to obtain the full text of the tion — in particular the commencement of decision from the Commission. the period for an action for annulment in accordance with Article 173(5) of the EC Treaty. However, it none the less points out that no analysis of the relevant market was undertaken in the Commission's letter of 21 November either. Besides, a mere refer- ence to parameters on the granting of aid in 62. The Commission also points out, how- the agricultural sector did not release the ever, that the abstract published in the Commission from its obligation to under- Official Journal contained all the essential take at least a summary assessment of the elements of the decision. As far as market consequences of the measures it had analyses were concerned, these had pre- approved for the relevant market. ceded the guidelines and parameters on the granting of aid applied by the Commission in this case. Therefore, comments on mar- ket analyses were not essential during examination of an individual aid scheme.

to that State alone to determine domestic ments to be satisfied by the statement of responsibility and procedures for imple- reasons depend on the circumstances of menting aid in accordance with Commu- each case, in particular the content of the nity law. measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explana- 64. In this connection, France recalls that tions. It is not necessary for the reasoning the Commission had sent a letter to the to go into all the relevant facts and points Member States on 11 October 1990, giving of law, since the question whether the details of the procedure for publishing a statement of reasons meets the require- description in the Official Journal for ments of Article 190 of the Treaty must be information purposes. It followed from this assessed with regard not only to its wording that the version printed in the Official but also to its context and to all the legal Journal did not reproduce the full text of rules governing the matter in ques- the contested decision. tion ... ,' 32

Analysis

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35 — Judgment in Case C-367/95 P (quoted in footnote 18, at paragraph 68 et seq.). 37 — For interpretation of the applicant's submission see judg- 36 —Judgment in Case C-367/95 P (quoted in footnote 18, at ment of 17 May 1984 in Case 338/82 Albertini v Com- paragraph 45). mission [1984] ECR 2123, at paragraph 5 et seq.

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disputed aid was granted also to natural (b) The alleged infringement of the Treaty sweet wines. 38Thisshows that the require- or one of the rules of law relating to its ments of the Matra case can refer only to application the decision not to initiate the procedure under Article 93(2) of the EC Treaty, and do not also contain all the necessary elements of a statement of reasons for the 74. As a second ground for annulment, the simultaneous authorisation of aid. For this applicant invokes infringement of the reason alone, there must in principle be Treaty or one of the rules of law relating held to be a deficiency in the statement of to its application. Within this plea it reasons, since neither the Court nor the mentions two different aspects. Firstly, it parties concerned can assess, on the basis of complains, on the basis of a substantive the decision alone, to which aid the Com- examination of the aid, of the infringement mission raised no objections. of the combined provisions of Article 92 and Article 95 of the EC Treaty. Secondly, it submits that the aid scheme is not transparent and that the Commission has not imposed the necessary conditions.

72. However, again with regard to the decision not to initiate the procedure under Article 93(2) of the EC Treaty, account must be taken not only of the requirements in the Matra case but also the requirements (aa) On the alleged infringement of Art- stated in the Sytraval case in respect of the icle 92 in conjunction with Article 95 of complainants' criticisms. The AEVP points the EC Treaty repeatedly to its reservations, which arise from the combination of the aid with the existing taxation system for liqueur wines and natural sweet wines. The Commission does not say a single word about this central point of the complaint. There is Arguments of the parties therefore in this respect also a deficiency in the statement of reasons.

78. By introducing the present system of aid the French authorities were at least — Thirdly, the contested decision had not partially compensating French liqueur taken into account the significance of wines for the tax disadvantage suffered by port and sherry in the relevant market liqueur wines compared with natural sweet since 1986. The production of port was wines. subject to extremely stringent quality standards, and the regions of origin were in a comparable economic situa- tion to the regions producing natural sweet wines in France.

79. The applicant puts forward four argu- ments to prove that the aid regime author- 39 — Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol ised by the Commission goes beyond the and alcoholic beverages (OJ 1992 L 316, p. 21). limits laid down in Article 92: 40 —Judgment in Case 196/85 (quoted in footnote 25).

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44 — Judgment in Case 196/85 (quoted in footnote 25). 45 — Quoted in footnote 39. 47 — Judgment in Joined Cases 142/80 and 143/80 (quoted in 46 — Judgment in Case 196/85 (quoted in footnote 25). footnote 43, at paragraph 28).

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lative influence of both measures on a sory voluntary contributions. If the aid for certain market is no longer compatible brandies is separated from the other aid on with the common interest within the mean- this basis, the remaining, substantial, part ing of Article 92(3)(c) of the EC Treaty. In of the aid seems to favour a group which such a situation a Member State should at largely coincides with the group of French least not implement the aid scheme until it producers suffering a tax disadvantage. eliminates or reduces the differences in Should the necessary investigations confirm taxation to such an extent that the addi- this impression, it could indeed be inferred tional effect of the aid on the market from this that the purpose was compensa- concerned no longer runs counter to the tion as alleged by the Portuguese Govern- common interest. 48 ment. There is much to be said in support of regarding such compensation as incom- patible with the common interest within the meaning of Article 92(3)(c) of the EC Treaty.

89. It cannot be judged how things stand in the present case as the Commission has not yet carried out the necessary investigations.

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aid scheme and, secondly, the absence of 95. More detailed information could not be conditions which the Commission should demanded from a Member State when have imposed. registering aid as it was up to that State alone to determine domestic responsibility and procedures for implementing aid in accordance with Community law. Besides, it followed from the case-law that it was up — The lack of clarity of the scheme to Member States to monitor compliance with the conditions for the authorisation of aid whilst the Commission could if neces- sary order repayment of the aid where those conditions were infringed.

Arguments of the parties

93. As already explained in connection with the infringement of essential proced- Analysis ural requirements as the cause of the present action, under the plea of insuffi- cient statement of grounds, the applicant criticises the lack of clarity of the present 96. The accusation of lack of clarity of the aid scheme as an infringement of the present aid scheme is of importance in Treaty. 50 At the hearing it also pointed connection with the plea of infringement of out that the Commission had dispensed the Treaty only in so far as it is directed at with obtaining relevant information the fact that the Commission had never although relevant requests had been con- even determined the relevant facts. tained in a form with advice on registering aid which the Commission had sent to the French authorities along with the invitation to give notification of the scheme.

out and for the Commission to assess ments and the Commission's oral submis- whether it was appropriate to demand that sions, the latter did not have all the details the aid be repaid'. 51 mentioned there when making its decision. In particular, there is no information about the French authorities responsible for dis- tributing the aid or the criteria for distri- buting it to individual recipients. Only the 98. This finding refers to the risk of aid limits on the granting of aid which can be being used contrary to the purposes author- derived from the texts mentioned in the ised by the Commission. This risk can decision offer some guidance in that never be completely ruled out in respect. It therefore seems difficult, at the advance. 52 The applicant's complaint, least, to monitor, on a case-by-case basis, however, is levelled at the fact that the whether the French have kept their prom- Commission did not obtain sufficient ises, since the Commission does not know information about the aid to rule out the where to carry out monitoring. Besides, it is possibility of even its authorised form's not possible to judge to what extent being incompatible with Article 92(2)(c) of national regulations and criteria prevent the EC Treaty. This complaint is to be aid from being misused. endorsed in so far as establishing that aid basically gives no cause for concern requires a minimum amount of information on such aid and, in particular, the measures taken to prevent it being used inappropri- 100. Whether this lack of information is ately. enough for the decision to be set aside does not, however, need to be decided here since the Commission can take it into account when carrying out the procedure under Article 93(2) of the EC Treaty. 99. Commission practice, as it emerges from the form on the information which the notification of aid under Article 93(3) of the EC Treaty has to contain, 53 basically provides the model for the information required. According to the present docu- — The accusation of lack of conditions

102. The Commission objects that, in so far as the applicant referred to the regula- Analysis tions on aid for restructuring, it ignored the fact that the 'Community guidelines on State aid for rescuing and restructuring firms in difficulty' 54 were not to be applied to the disputed aid, which related inter alia to the restructuring of a sector of French agriculture. The texts applicable in this case did not require a time-limit or digressive arrangement. 105. The Commission's objection is to be endorsed in so far as none of the texts mentioned by it in the decision for putting Article 92(3)(c) of the EC Treaty in con- crete terms provides for a time-limit or digressive form. Such an arrangement does admittedly emerge from the guidelines 103. France also points out that the Com- mentioned by the Commission but — as mission was granted broad powers of the Commission submits — the purpose of discretion when judging whether aid was the present aid is not to restructure or justified under Article 92(3). The applicant rescue individual businesses. Nor can the had not shown that the Commission in this Commission be accused of having exceeded respect had made a mistake when ascer- its powers of discretion by not applying taining the facts, or made a grave error of business-related requirements to regional judgment, which alone could have helped and sectoral aid also. Even if such aid is this plea to succeed. directed at restructuring, it differs so greatly from business-related aid that auto- matic equal treatment cannot be de- manded. Besides, as France submits, the Commission also only authorised the aid planned for 1995. 55 This plea must there- fore be rejected. 104. In view of the period of validity of the aid, France assumes that authorisation 55 — This shows again that the Commission in its statement of reasons for the decision did not present the authorised aid scheme in sufficient detail. According to the notice in the Official Journal, quoted in footnote 2, the aid is authorised 54 — OJ 1994 C 368 of 23 December 1994, p. 12. for an unspecified duration.

(2) The Commission bears the costs of the proceedings.

(3) The Kingdom of Spain and the French Republic must bear their own costs.

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