C-5/01

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4. Since the 1980s, the Commission has 6. Article 6(5) of the Steel Aid Code con- adopted Community rules on State aid for tains the following procedural rules: the iron and steel industry on the basis of the aforementioned provisions of Article 95 of the ECSC Treaty in only a limited number of cases. The Community rules on aid for the iron and steel industry which were in force at the time relevant to this case were introduced by Commission Decision No 2496/96/ECSC 3 (hereinafter: 'the Steel Aid Code'). 'If the Commission considers that a certain financial measure may represent State aid within the meaning of Article 1 or doubts whether a certain aid is compatible with the provisions of this decision, it shall inform the Member State concerned and give notice to the interested parties and other Member States to submit their comments. If, after having received the comments and after having given the Member State con- cerned the opportunity to respond, the 5. Article 1(1) of the Steel Aid Code reads: Commission finds that the measure in '[a]id to the steel industry, whether specific question is an aid incompatible with the or non-specific, financed by Member States provisions of this decision, it shall take a or their regional or local authorities or decision not later than three months after through State resources in any form what- receiving the information needed to assess soever may be deemed Community aid and the proposed measure.' therefore compatible with the orderly func- tioning of the common market only if it satisfies the provisions of Articles 2 to 5'. 4 According to Article 1(2), '[t]he term "aid" also covers the aid elements contained in transfers of State resources by Member States, regional or local authorities or other bodies to steel undertakings in the form of acquisitions of shareholdings or provisions of capital or similar financing... which III — The facts and background to the cannot be regarded as a genuine provision contested measures of risk capital according to usual invest- ment practice in a market economy.'

8. The crisis in the steel industry in Europe, which hit the Walloon steel industry par- ticularly hard in 1996, leading to a sub- stantial increase in unemployment there, gave fresh impetus to the demands by 10. Finally, on 17 April 1998, the negoti- employees' representatives for a reduction ations led to the conclusion between Cock- in working time to increase or at least erill Sambre and the representatives of the maintain the level of employment. As can employees concerned a collective agree- be seen from the application and the ment (hereinafter: 'the 1998 collective documents attached to it, in particular a agreement') which provided for a reduction note to the Commission from the Belgian in working time from 37 to 34 hours per authorities sent by letter of 30 June 1999, week. The agreement pursues the dual the chairman of Cockerill Sambre stated in objective of not in fact reducing employees' January 1996 that he was willing to con- earnings and not imposing any additional sent to a reduction in working time on costs on the undertaking. This is achieved condition that this led to the creation of through the undertaking's reliance on State additional jobs and that it did not entail aid. 5 any additional costs for the undertaking. The collective working agreement of 1996 provided that a joint working group would be set up in order to examine the possibility of reducing working time in such a way as to meet the aforementioned conditions. The working groups set up thereafter came to 11. The 1998 collective agreement thus the conclusion that the level of employment could not be maintained or increased with- provides essentially as follows: out cost implications — that is to say without an increase in the social costs payable by the undertaking.

'This collective agreement is economically dependent on the condition that public compensation is paid in the amounts estab- lished jointly. If that compensation is not — the total cost of the wages which paid, the parties to the agreement shall Cockerill Sambre pays to employees together review the situation and the possi- covered by the collective agreement is bility of implementing this agreement.' to remain the same. The undertaking is to pay the remuneration — including annual indexation — due for a work- ing week of 34 hours only; 14. In the event, only a small propor- tion — some EUR 0.7 million's worth — of the compensation paid to a total of 1 852 employees covered by the agreement was subsequently funded by the employees themselves, the vast majority having been — in order to offset the loss of earnings financed through the intervention of the suffered by employees covered by the Belgian and Walloon authorities. collective agreement, a mechanism of digressive compensatory payments is to be established.

IV — The contested measures

12. Under the 1998 collective agreement, 15. The contested measures amount to a the compensatory payments to the total of EUR 13.7 million altogether and employees affected by the reduction in consist of two parts. working time are funded partly by the employees themselves, inasmuch as they are to forgo the wage increases due to them in 1997 and 1998. However, the collective agreement also expressly provides that the parties are to apply jointly for any aid 16. First, the Belgian government granted a available to Cockerill Sambre in order to reduction in the social security contribu- finance the reduction in working time tions payable by employers (hereinafter: under the collective agreement. 'the social security contributions') of

18. Secondly, on 19 November 1998, the Walloon Government supplemented the V — Proceedings before the Commission measure adopted by the Belgian Govern- and the contested decision ment with a subsidy of EUR 3.35 million. This intervention formed part of the Wal-

20. On the basis of information contained 6 — Decree implementing the Law of 6 January 1989 on the in the press, the Commission wrote to the maintenance of national competitiveness, Moniteur beige of 31 December 1993, p. 29300. 7 — Moniteur belge of 11 March 1997, p. 5182, adopted on the basis of the Law of 26 July 1996 on the promotion of employment and the preventive safeguarding of competi- 8 — Declaration of 11 December 1995 on economic develop- tiveness (Moniteur belge of 1 August 1996, p. 20575). ment and employment promotion.

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Belgian authorities on 23 November 1998 aid in breach of Article 6(1) and (2) of the to request details of the operating aid Steel Aid Code. which the steel undertaking Cockerill Sambre had allegedly received in connec- tion with a scheme to reduce working time. In a letter of 11 December 1998, the Belgian authorities confirmed that that information was correct, but stated that, in their view, the measures in question did not constitute State aid. VI — The action

24. By an application of 8 January 2001, lodged at the Court Registry on 9 January 2001, the Belgian Government brought an 21. By letter of 25 January 2000, the action for the annulment of that decision Commission informed the Belgian Govern- under Article 230 EC. ment of its decision to initiate the pro- cedure under Article 6(5) of the Steel Aid Code in respect of the measures in ques- tion. 25. The Kingdom of Belgium claims that the Court should:

VII— The first and second pleas: do the 28. By the first plea, it submits that the contested measures meet the condition for Commission has made a manifest error of State aid within the meaning of Article 4(c) assessment in classifying the contested of the ECSC Treaty? measures as aid; in so doing it has distorted the meaning of aid as defined in Article 4(c) of the ECSC Treaty and the Steel Aid Code. By the second plea, the applicant claims that the Commission has failed to take account of the meaning of beneficiary, since the public authorities intervened for the benefit of the Cockerill Sambre Submissions of the parties employees covered by the collective agree- ment and not for the benefit of Cockerill Sambre itself. By the third plea, the Belgian Government claims that the procedure provided for in the Steel Aid Code has been breached and that the Commission 30. By the first two pleas, the applicant lacks competence. The fourth plea concerns submits that, in its decision, the Commis- the Commission's failure to fulfil the obli- sion wrongly and by a manifest error of gation to state reasons. Finally, by the fifth assessment classified the contested meas- plea, the applicant submits, in the alter- ures as aid within the meaning of native, that, if the contested measures do Article 4(c) of the ECSC Treaty and the constitute aid, the Commission has com- Steel Aid Code. mitted a manifest error of assessment by failing to grant them authorisation by way of exception under Article 95 of the ECSC Treaty.

31. In the first plea, it bases that sub- mission on the lack of any economic advantage for Cockerill Sambre, and relies 29. The first two pleas concern different essentially on two arguments to support aspects of the same question, namely this.

35. The Commission points out that the meaning of aid, as that term is to be understood according to settled case-law, does not differ depending on whether the 33. Secondly, the applicant also points out charges are voluntary or compulsory. In its that the reduction in working time was view, it is common ground that this case neutral in its economic impact on Cockerill concerns State measures; the only question Sambre. The undertaking derived no econ- is whether Cockerill Sambre gained an omic advantage from the reduction in economic advantage for the purposes of social security contributions because Cock- the definition of aid. erill Sambre paid over the resulting savings in full to the employees concerned, so that the public money in fact merely passed through the undertaking without reducing its costs. Indeed, the subsidies granted by the Wallonia Region went direct to the employees. The contested measures can 36. The Commission also looks at the therefore be regarded as equivalent to aid background to the 1998 collective agree- granted to the individual employees. ment. It submits that, in reality, that agreement involved three parties, the undertaking and the employees' represen- tatives having reached an impasse in the negotiations which they were able to resolve only through the intervention of a third party, namely the public authorities. 34. The applicant further submits, with regard to economic neutrality, that the number of hours worked by the employees covered by the collective agreement was kept the same, at no extra legal or con- tractual cost to Cockerill Sambre. Con- sequently, no increase in wage costs was 37. The Commission states that workers' agreed with the employees' representatives. pay is one of the most important elements Moreover, the applicant points to a number of an undertaking's operating and produc-

41. With regard to the first two pleas, it is necessary to examine whether payments 39. Relying on arguments which are in part provided for in a collective agreement similar to those it employs on the question which are made to employees, as wages, of economic advantage, the applicant, to compensate them for the loss of earnings under the second plea, submits that the resulting from an agreed reduction in employees were the only beneficiaries of working time fulfil the conditions for aid the contested measures. The reduction in within the meaning of Article 4(c) of the working time took place exclusively at their ECSC Treaty. It is common ground that instigation and in their interests, the under- such payments, in so far as they are not taking having acted only as an adminis- financed by the employees themselves, trative and financial intermediary, without constitute State payments or payments itself having derived any advantage from made out of State resources. the measures. The compensatory payments were purely social in nature and were made specifically for the benefit of the employees concerned. The contested measures there- fore constitute aid to individuals and not aid to the undertaking.

42. According to settled case-law, 'aid' has a wider meaning than 'subsidy' because it embraces not only direct financial benefits to the undertaking, but also, and generally, 40. The Commission, on the other hand, any advantages granted by public auth- points out that, according to settled case- orities which, in various forms, mitigate the

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9 — Judgments in Case 30/59 Steenkolenmijnen Limburg [1961] 47. Next, an assessment of the contested ECR 1, p. 39; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13; Case C-241/94 France v measures with reference to their effects Commission [1996] ECR I-4551, paragraph 34; Case C-256/97 DM Transport [1999] ECR I-3913, shows that the answer to the question paragraph 19; and Case C-143/99 Adria-Wien Pipeline 2001) ECR I-8365, paragraph 38. whether Cockerill Sambre has gained an economic advantage will also answer the 10 — See, for example, the judgments in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 27, and Case C-241/94 (cited in footnote 9), paragraph 20. 11 — Judgment in Case T-67/94 Ladbroke [1998] ECR II-1, paragraph 52. 13 — Cf., for example, the judgments in Case C-200/97 12 — Cf. the judgments in Case C-241/94 (cited in footnote 9), Ecotrade [1998] ECR I-7907, in particular paragraph 40, p aragraph 21; Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 23; and Case C-75/97 Belgiumv and Case C-75/97 (cited in footnote 12), paragraph 26 et seq. Commission [1999] ECR I-3671, paragraph 25. 14 — Cf., in this respect, points 132 and 133 below.

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questions, raised in the second plea in law, employees all of the savings from the concerning the economic beneficiary of the reduction in social security contributions contested measures. granted to it by the Belgian Government, is not disputed.

48. After all, determining whether Cocker- 51. However, that does still not mean that ill Sambre has derived a (specific) economic Cockerill Sambre did not derive an indirect advantage from the contested measures is economic benefit, inasmuch as the State the same as determining whether that financing of the compensatory payments undertaking is the beneficiary, since the had the effect of mitigating the charges it question whether the undertaking has had to bear. benefited directly or indirectly 15 and, in general, what form the State measure took, is immaterial. 16

50. The fact that it was ultimately the employees who benefited directly from the 54. Before dealing with that question, I contested measures, inasmuch as, on the should like to point out that the mitigation one hand, they received subsidies direct of charges could also be examined, as the from the Walloon Government, and, on the Commission did in part, from another other, Cockerill Sambre passed on to angle, at least as regards the measure adopted by the Belgian Government. The financing of the compensatory payments, in 15 — Cf. the judgment in Case 6/64 Costa v E.N.E.L. [1964] so far as it was effected by the Belgian ECR 614. Government, took the form technically of a 16 — Cf. the judgment in Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 23, and the judgment cited reduction in the social security contribu- there. tions payable by the employer, the savings 17 — Opinion in Case C-311/94 IJssel-Vliet [1996] ECR I-5023, point 9; cf. also the Opinion of Advocate General Jacobs from which the employer then passed on to in Case C-241/94 (judgment cited in footnote 9), point 51. the employees.

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55. To that extent, regard might be had to taking into account, as mentioned above, the social security contributions rather than the more restricted form of State financing the compensatory payments. The Court of involved in this case. Justice has after all consistently held that a measure which enables undertakings in a particular sector of the economy to avoid having to bear some of the charges result- ing from the normal application of the general social security system without that 58. It must be observed first of all in this waiver being justified by the essence and connection that Cockerill Sambre and the structure of that system must be classed as employees' representatives agreed the com- aid. 18 pensatory payments together with the reduction in working time in the 1998 collective agreement.

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61. The Court regularly bases its decisions any service greater than that which cor- in the field of aid law on the notion of an responds to the market value. 24 operator acting in an economically rational and market-orientated manner. 21

64. Against that background, it is also safe to assume, in principle, that an undertaking will not be willing to grant its employees any greater concessions than are necessary in order to be able to obtain their labour. In 62. Thus, in connection with the fixing of a other words, it is necessary to proceed on tariff for a source of energy, the Court the premiss that an undertaking acquires started from the premiss that a normal the labour factor of production for the operator would not forgo a profit that he (regulated) 'market price' and that the could normally make. 22 The same is true of collective agreement is the expression of the case-law on State participation in the that market price. capital of undertakings governed by private law, according to which a private share- holder would reasonably subscribe capital for an undertaking only if there were a prospect of profitability, at least in the long term. 23 65. There is nothing in the documents before the Court in this case to indicate that that assumption is not justified in relation to the 1998 collective agreement also.

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67. Moreover, because the undertaking necessarily related demands of the initially rejected that demand, precisely parties, 25 does not make a pay settlement because of the increase in costs which any different from other price formation compliance with it would inevitably have procedures on the market. entailed, the employees staged a token strike.

71. If the payments provided for in the 68. In the end, the conclusion of the 1998 collective agreement to compensate the collective agreement was possible only employees affected by the reduction in because provision was made for a mech- working time are therefore to be regarded anism to compensate employees affected by as forming part of the price for the labour the reduction in hours. The fact that, for production factor, the State, in financing the employees, that mechanism represented those payments, relieved Cockerill Sambre an essential prerequisite for conclusion of of charges which it would normally have the collective agreement is clear, inter alia, had to bear itself. That is because labour from the clause contained in that agree- costs form part of the production costs ment to the effect that the parties are jointly which, as explained earlier, the undertak- to review the situation and the possibility ing must in principle defray out of its own of implementation if the compensation is resources. 26 not paid.

72. Contrary to the applicant's submission, 69. In the light of the foregoing consider- it is immaterial that the compensatory ations, it must therefore be concluded that, payments do not relate to a legal obli- in this particular case, the compensatory gation. Indeed, as a rule, an undertaking's payments form part of the 'market price' production costs do not result primarily for labour. from legal obligations — most of which are charges to tax — but from the costs of the necessary means of production, as determined by the market situation. More- over, the Court has already held in this

connection, in Case C-251/97, that costs Sambre. It substantiates that view by stat- resulting from a collective agreement are ing first that all the public money was used included, by their nature, in the budgets of for the compensatory payments. It need undertakings. 27 only be pointed out in this respect that the compensatory payments form part of the charges payable by the undertaking. 29 Furthermore, the submission that, under the collective agreement, the same number of working hours is to continue to be worked for the same hourly rate of pay is 73. As regards, next, the applicant's objec- likewise based on the erroneous premiss tion that, in the 1998 collective agreement, that the compensatory payments do not Cockerill Sambre did not undertake to bear constitute a charge payable by the under- the cost of the compensatory payments, taking. After all, if the compensatory that agreement having expressly provided payments are included in the labour costs, that those payments were to be financed by as they should be, the cost of labour to the both the employees and the public auth- undertaking has remained the same (in orities, I, like the Commission, consider economic terms) only because the State this to be inconclusive. has borne the expense of the compensatory payments. Moreover, while the applicant has pointed out that it incurred some 'relatively significant' additional costs as a result of the reduction in working time, it has not said that the advantage represented by the State financing of the compensatory 74. An undertaking cannot remove the payments was totally offset by those assumption of production costs — in this costs. 30 Consequently, the submission case charges relating to its employees — regarding economic neutrality must also by the public authorities from the scope of be rejected. application of the law on aid by claiming that the collective agreement was from the outset concluded on the understanding that costs would be borne by the State. 28

that undertaking, and have thus to that 80. This, it contends, follows from a extent conferred an economic advantage on comparison with the time-limit for notifi- it. Cockerill Sambre is therefore also an cation laid down in Article 6(1) of the Fifth economic beneficiary for the purposes of Steel Aid Code, 31 which the Court also the definition of aid. classified as a time-limit operating as a time-bar. 32 The binding nature of the time-limit is further confirmed by the difference between the wording of the provision in question and that of Article 7(5) of Council Regulation (EC) 77. The first two pleas must therefore be No 659/1999 of 22 March 1999 on special rejected. provisions for the application of Article 93 of the EC Treaty 33 (hereinafter: 'Regu- lation No 659/1999'). Moreover, the bind- ing time-limit contributes towards legal certainty, since economic operators are not left for ever in the dark as to when the procedure has come to an end. VIII — The third plea: breach of the procedure laid down by the Steel Aid Code — Lack of competence on the part of the Commission

81. The Commission does not dispute that it did not adopt the contested decision until after the three-month time-limit laid down in Article 6(5) of the Steel Aid Code had Submissions of the parties expired, but it submits that this did not breach an essential procedural requirement.

78. The applicant claims that the Commis- sion was not competent to adopt the contested decision since, at the time it was taken, the three-month time-limit for such a decision, laid down in Article 6(5) of the 82. It takes issue with the view that the Steel Aid Code, had already expired. time-limit in question operates as a time- bar. The classification of the time-limit under Article 6(1) of the Steel Aid Code cannot automatically be transposed to that under Article 6(5), since, as Advocate

General Jacobs observed in his Opinion in unsatisfactory outcome in terms of legal Salzgitter v Commission, 34 the nature of a certainty and procedural economy. time-limit must be assessed in each individ- ual case on the basis of a number of criteria, such as the objective and purpose of the time-limit in its legislative context. 8 5 . As regards the c o m p a r i s o n of Article 6(5) of the Steel Aid Code with Article 7(5) of Regulation No 659/1999 in the context of the EC, the Commission submits that the similarity between the 83. The Commission points out that the respective schemes of the two provisions Steel Aid Code provides for exceptions to indicates that the two time-limits are of the the general principle of prohibition of aid same kind. and must therefore be interpreted restrict- ively. Aid may be provided only on the basis of express authorisation from the Commission, subject to the rule in Article 6(6) to the effect that a Member State may put into effect the planned 86. In its reply and at the hearing, the measures, after first informing the Com- applicant did not deny that aid plans can be mission, if the latter has not taken any steps put into effect only with the Commission's within two months of receiving notification consent. It also concedes that the Commis- of the plan in question. sion may be forced, after the time-limit laid down in Article 6(5) has expired, to con- duct a new procedure in order to arrive at a final decision. The applicant points out, however, that, despite the principle of the prohibition of aid, it has an interest in any event in claiming that the Commission 84. In contrast to that provision, however, lacks competence because a finding to that there is nothing in the wording or in the effect would mean that the contested scheme of Article 6(5) of the Steel Aid Code decision, including the requirement to to indicate that the Member State has the recover the aid, with interest, has no legal power to put the measures in question into basis. effect after the time-limit laid down there has expired. If, therefore, that time-limit were interpreted as operating as an abso- lute time-bar, the procedure would be blocked. If, on the other hand, the binding nature of the time-limit were understood as relating only to the procedure under way, the Commission could bring that procedure Assessment to a close only by re-starting it. Both approaches would therefore lead to an 87. In this case, it is common ground that 34 — Opinion of Advocate General Jacobs in Case C-210/98 P the Commission did not adopt the con- (judgment cited in footnote 32), point 84. tested decision until after the three-month

90. It is therefore necessary to examine whether the three-month time-limit 93. According to Article 4(c) of the ECSC referred to in Article 6(5) of the Steel Aid Treaty, subsidies or aids granted by States, Code is to be understood as operating as a 37 — Cf., for example, the judgment in Case C-367/95 P Commission v Sylraval [1998] ECR I-1719. 35 — See the judgment in Case C-210/98 P (cited in footnote 32), paragraph 67; cf. also the comments of Advocate General paragraphs 54 and 55. Jacobs in his Opinion in Case C-210/98 P (cited in 36 — Cf. the judgment in Case C-84/96 Netherlands v Commis- footnote 32), point 125 et seq. sion [1999] ECR I-6547, paragraphs 23 and 24. If the 38 — Cf., for example, the Judgments in Case C-357/88 Commission does exceed its discretion in this context, it is Oberhausener [1990] ECR I-1669, paragraph 12, and divested of its competence. Case C-289/97 Eridania [2000] ECR I-5409, paragraph 26.

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in any form whatsoever, are recognised as —planned aid measures may be put into incompatible with the common market for effect only with the express approval of the coal and steel and are to be abolished and Commission, subject to the rule in prohibited in the Community. Unlike the Article 6(6) to the effect that aid measures rules on aid in the EC Treaty, 39 Article 4(c) may also be put into effect without appro- of the ECSC Treaty does not itself contain val if, within two months, the Commission any exceptions to that prohibition. How- has failed to initiate the procedure provided ever, the Steel Aid Code adopted by the for in paragraph 5 or otherwise to make its Commission on the basis of Article 95 of position known. the ECSC Treaty permits the granting of aid to the iron and steel industry in a number of exhaustively listed cases.

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than three months after receiving the infor- indicative rather than as operating as a mation needed to assess the proposed time-bar. 44 measure. Moreover, the context in which that rule arises, as described, in particular the strict aid regime obtaining under the ECSC Treaty, makes it impossible to read into it any implicit authorisation to put the measures in question into effect. 102. Finally, the applicant's submission that, in this context, in particular having regard to economic considerations, a time- bar would contribute towards legal cer- tainty, is likewise unconvincing.

100. On the other hand, when classifying a time-limit as operating as a time-bar, the Court of Justice has taken into account, inter alia, the fact that failure to comply 103. First, one of the purposes of any with the time-limit carries with it a par- procedural time-limit is, ultimately, to ticular penalty or an automatic con- secure legal certainty by setting a timescale sequence. The reason for this is that, in for the decision-making process. To that such cases, the Commission has no dis- extent, this is also true of purely indicative cretion as regards the application of the time-limits. These time-limits too must penalty, and, therefore, no discretion to therefore be observed by the Commission postpone the deadline or extend the time- in the interests, not least, of legal cer- limit, so that the time-limit cannot be tainty. 4 5 regarded as being merely indicative. 43

105. Consequently, having regard to its purpose and context, the rule laying down the time-limit in Article 6(5) of the Steel 108. Secondly, the applicant objects to the Aid Code does not appear to operate as a contested decision in so far as, in it, the time-bar. The Commission did not there- Commission failed to address the appli- fore lack the competence to adopt the cant's arguments concerning the meaning contested decision in question. The third of beneficiary, which arguments it also plea too must accordingly be rejected. raised under the second plea.

109. Thirdly, the applicant submits that the IX — The fourth plea: failure to fulfil the contested decision makes no mention of the obligation to state reasons economic effects of the contested measures on the common market and competition.

111. With respect to the applicant's first decision but also with regard to its context allegation under this plea, the Commission and to all the legal rules governing the states that it gave express consideration to matter in question. 48 the guidelines on employment policy in the contested decision. As regards the alle- gation that it failed to comment on the meaning of beneficiary, the Commission refers to its submissions under the second plea. Finally, it counters the applicant's 114. In the light of the foregoing, it is not third allegation under this plea by stating therefore decisive whether the Commission that, when it comes to classifying a State expressly examined in its decision all the measure as aid under Article 4(c) of the points put forward by the State to which ECSC Treaty, as opposed to Article 81(1) that decision was addressed. 4 9 What EC, the effect on trade between Member matters is that, taking into account its States or on competition is immaterial. context and the legal provisions applied, the decision is supported by the reasons given.

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116. The applicant's first allegation is addressed Belgium's argument that the essentially that the statement of reasons contested measures constitute aid to indi- for the decision fails to take into account an viduals or social measures in favour of the argument to the effect that, if the Commis- group of workers concerned. sion classifies the measures forming the subject of the procedure as aid or as incompatible with the common market, there will be a risk of inconsistencies in European employment policy.

120. Finally, in point 23 of the decision, the Commission comes to the conclusion that the aid is directed not to individuals 117. In this regard, it must be stated that but to the undertaking, and that it serves to this is not a point which needs to be taken finance costs payable by Cockerill Sambre. into account when classifying a measure under Article 4(c) of the ECSC Treaty. The fact that the Commission makes no com- ment on the matter cannot therefore be deemed a failure to state reasons.

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ine the economic effects of the contested particular the improvement of living and measures on the common market or on working conditions in accordance with competition. Article 3(e) of the ECSC Treaty.

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ECSC Treaty can be raised in this action order to achieve the aims of the ECSC irrespective of the particular procedure Treaty, but it failed to do so. being pursued under that article, and even if that procedure has already culminated in a negative decision.

53 — inter alia, the judgments of the Court of First Instance in Case T-37/97 (cited in footnote 48), paragraph 79 et seq. 54 — Judgment in Joined Cases 5/62 to 11/62 and 13/62 to and of the Court of Justice in Case C-441/97 P Wirts- 15/62 San Michele and Others [1962) ECR 449. Even if a chaftsvereinigung Stahl, Thyssen Stahl AG, Preussag Stahl decision is not what was expected or applied for, the action AG and Hoogovens Stahl BV v Commission [2000] that lies against it is an action for annulment under ECR I-10293, paragraph 53, and the order of the President Article 33 of the ECSC Treaty, not an action (for failure to of the Court of Justice in Case C-399/95 R Germany v act) under Article 35 of the ECSC Treaty. Commission [1996] ECR I-2441, paragraphs 61 and 62. 55 — Cf. point 138 below.

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contends that, by the contested decision, it the common market in coal and steel and in also made an indirect — and, more spe- accordance with Article 5, one of the cifically, negative — decision, within the objectives of the Community set out in meaning of the judgment cited, on the Articles 2, 3 and 4, take such a decision or question of authorisation as well. make such a recommendation with the unanimous assent of the Council and after the Consultative Committee has been con- sulted.

129. The alleged deficiencies therefore con- cern the lawfulness of the contested decision itself and thus constitute a plea on which an action under Article 33 of the ECSC Treaty can be based. 133. The Commission is thus empowered, in derogation from Article 4(c) of the ECSC Treaty, to authorise State aid by way of exception.

ment only in so far as it clearly did not Treaty to be set in motion. However, the proceed in accordance with that article. Belgian Government did not make any such application until its letter of 30 November 2000, i.e. after the adoption of the con- tested decision on 15 November 2000. It is the settled case-law of the Court of Justice that the legality of a decision in the field of State aid is to be assessed in the light of the information available to the Commission when the decision was adopted. 60 Accord- ingly, at the time relevant to the assessment of the contested decision, the Commission 137. That assumption seems justified, how- had not received any application for auth- ever, in so far as Article 95 of the ECSC orisation of the aid in question under Treaty confers a power on the Commission Article 95 of the ECSC Treaty. but does not impose an obligation on it. 57 The case-law of the Court of Justice also states that the only object of the first paragraph of Article 95 of the ECSC Treaty is to 'institute special rules' for departing from the Treaty for the purpose of 'em- powering' the Commission to meet an unforeseen situation. 58

139. In view of all the foregoing, the Commission did not commit a manifest error of assessment by not initiating the procedure under Article 95 of the ECSC Treaty and not authorising the contested measures. 138. Moreover, as the Court of First Instance held in Case T-89/96, 59 in the case of individual decisions, the general logic of the aid authorisation system actually requires that the Member State apply to the Commission for the procedure provided for in Article 95 of the ECSC

(2) order the Kingdom of Belgium to pay the costs of the proceedings.

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