CJEC, December 11, 1973, No 120-73

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By order dated 19 March 1973 filed at the registry on 12 April 1973, the Verwaltungsgericht, Frankfurt-on-Main, referred several questions, under Article 177 of the EEC treaty, relating to the interpretation of Article 93 (3) of the treaty establishing the European Economic Community.

These questions concern the methods of prior control of State aid and, in particular, the effects of delay on the part of the Commission in defining its attitude with regard to proposals which are notified to it, or in setting in motion the procedure for ascertaining their incompatibility with the common market, or of failure so to intervene.

2. Article 93 provides procedure enabling the Commission to discover State aid incompatible, having regard to Article 92 of the treaty, with the common market, and to provide for its abolition or to prevent its implementation.

Paragraph 1, concerning existing aid, enables the Commission, after giving notice to the parties to submit their comments as described in Paragraph 2, to require the member state concerned to abolish it or alter it within a period of time to be determined by the Commission.

Paragraph 3 institutes prior control of plans to grant new or alter existing aid and provides that " the Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 92, it shall without delay initiate the procedure provided for in paragraph 2.

The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision ".

3. In stating that the Commission shall be informed of plans to grant new or alter existing aid " in sufficient time to enable it to submit its comments ", the draftsmen of the treaty have sought to provide this institution with sufficient time for consideration and investigation to form a prima facie opinion on the partial or complete conformity with the treaty of the plans which have been notified to it.

It is only after being put in a position to form this opinion that the Commission is bound, if it considers the plan incompatible with the common market, to initiate without delay the contentious procedure, provided for in Article 93 (2), by giving notice to the Member State to submit its comments.

4. According to the last sentence of Article 93 the Member State shall not put its proposed measures into effect until this procedure has resulted in a final decision.

The objective pursued by Article 93 (3), which is to prevent the implementation of aid contrary to the treaty, implies that this prohibition is effective during the whole of the preliminary period.

While this period must allow the Commission sufficient time, this latter must, however, act diligently and take account of the interest of Member States of being informed of the position quickly in spheres where the necessity to intervene can be of an urgent nature by reason of the effect that these Member States expect from the proposed measures of encouragement.

In the absence of any Regulation specifying this period, the Member States cannot unilaterally terminate this preliminary period which is necessary for the Commission to fulfil its role.

The latter, however, could not be regarded as acting with proper diligence if it omitted to define its attitude within a reasonable period.

It is appropriate in this respect to be guided by Articles 173 and 175 of the treaty which, in dealing with comparable situations, provide for a period of two months.

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.

5. On the other hand although it is in the interests of good administration for the Commission, when, at the end of the preliminary examination, it considers that the aid conforms with the treaty, to inform the state concerned, it is not however bound to take a decision thereon within the meaning of Article 189 of the treaty, since Article 93 requires such a step only at the end of the contentious procedure.

It is not possible to conclude that the measure of aid is compatible with the treaty from the fact that the Commission did not consider itself obliged to initiate the contentious investigation procedure within the reasonable period referred to above.

Article 93 (1) requires the Commission, in cooperation with Member States, to keep under constant review all existing systems of aid.

Aid implemented, during the Commission's silence, after a period necessary for its preliminary examination, is thus subject, as an existing aid, to the provisions of Article 93 (1) and (2).

6. In the first place, therefore, it is proper to reply to the questions put that Article 93 (3) of the treaty must be interpreted as meaning that if the Commission, during the preliminary period, arrives at the conclusion that there is no need to initiate the contentious procedure, it is not bound to issue a decision within the meaning of Article 189.

This same provision implies, moreover, that, if the Commission, after having been informed by a Member State of a plan to grant or alter aid, fails to initiate the contentious procedure, this State may, at the expiration of a period sufficient to enable a preliminary examination of the plan, grant the proposed aid, provided that it has given prior notice to the Commission, and this aid will then come under the system of existing aids.

In view of the answers given to questions (a), (b) and (c), question (d) does not arise.

7. The third question asks whether the term " Member State " in Article 93 (3) of the treaty must be interpreted as meaning that the individual has a direct right in the non-infringement of this provision or whether it, at the very least, requires the national court of its own motion to take account of the invalidity of a law which grants aid in contravention of the prohibition on implementation laid down in Article 93 (3).

8. It has already been decided in the judgment of 15 July 1964 (case 6-64, rec. 1964, p. 1141), that the prohibition on implementation referred to in the last sentence of Article 93 (3) has a direct effect and gives rise to rights in favour of individuals, which national courts are bound to safeguard.

The immediately applicable nature of this prohibition extends to the whole of the period to which it applies.

Thus the direct effect of the prohibition extends to all aid which has been implemented without being notified and, in the event of notification, operates during the preliminary period, and where the Commission sets in motion the contentious procedure, up to the final decision.

9. As regards the second part of this question, while the direct effect of the prohibition in question requires national courts to apply it without any possibility of its being excluded by rules of national law of any kind whatsoever, it is for the internal legal system of every Member State to determine the legal procedure leading to this result.

10. The costs of the governments of the Federal Republic of Germany and of the United Kingdom, as well as those of the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that Court.

THE COURT,

In answer to the questions referred to it by the Verwaltungsgericht, Frankfurt-on-Main by order of that Court dated 19 March 1973 hereby rules :

1. The third sentence of Paragraph 3 of Article 93 must be interpreted as meaning that if the Commission, during the preliminary examination of aid which has been notified to it, arrives at the conclusion that there is no need to initiate the contentious procedure, it is not bound to issue a decision within the meaning of Article 189.

2. If the Commission, after having been informed by a Member State of a plan to grant or alter aid, fails to initiate the contentious procedure provided for in Article 93 (2), by giving notice to the Member State concerned to submit its comments, the latter may, at the expiration of a period sufficient to enable the aid to undergo a preliminary investigation, grant the proposed aid, provided that it has given prior notice to the Commission, and this aid will then come under the system of existing aids.

3. The direct effect of the prohibition on the Member State concerned from putting its proposed measures into effect extends to all aid which is granted without being notified and, in the event of notification, is granted during the preliminary period, and up to the final decision where the Commission sets in motion the contentious procedure. As regards the whole of this period it confers rights on the individual which the national courts are bound to safeguard.

4. While the direct effect of the last sentence of Article 93 compels national courts to apply this provision without it being possible to object on the grounds of rules of national law, whatever they may be, it is for the internal legal system of every Member State to determine the legal procedure leading to this result.