CJEC, July 12, 1973, No 70-72

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By an application lodged at the registry on 2 October 1972, the Commission, under Article 93 (2) of the EEC treaty, brought an action before the Court for a declaration :

1. That the Federal Republic of Germany has disregarded the decision of the Commission of 17 February 1971 on aid granted under Article 32 of the law of 15 May 1968 on the adaptation and rationalization of the German mining industry and mining regions (termed " Kohlegesetz ", Bundesgesetzblatt 1968 i, p. 365), extended by Article 9 of the law of 18 august 1969 on the grant of investment subsidies, which also amended certain provisions relative to the taxation system and to the system of grants (termed " Steueraenderungsgesetz 1969 ", Bundesgesetzblatt 1969 i, p. 1211);

2. That the Federal Republic of Germany is obliged to require repayment from the recipients of certain grants awarded in disregard of the decision referred to.

The subject of the action

2. Article 32 of the law of 15 May 1968 (Kohlegesetz) made it possible to grant, for a fixed period, aid in the form of a reduction of taxation making certain investments attractive so as to improve the economic structure of the German regions affected by the coal crisis.

The draft of that law was duly notified to the Commission on 15 June 1967 and the Commission stated on 30 November 1967 that it had no objection to put forward.

3. The effects of Paragraph 32 of the law of 15 May 1968 were extended for a period of two years under Article 9 of the law of 18 August 1969 (Steueraenderungsgesetz), following an amendment proposed by a committee of the Bundestag which was adopted by the latter on 18 June 1969 and approved by the Bundesrat on 10 July 1969.

The Government of the Federal Republic of Germany notified the Commission of this fact on 16 July 1969.

While the said Government was late in fulfilling the obligation imposed on Member States by the first sentence of Article 93 (3) to provide information, the Commission, for its part, did not exercise the powers conferred upon it by the second and third sentences of Article 93 (3) but confined itself in a communication dated 1 August 1969 to protesting and to requesting further information.

In these circumstances, the legislation approved by the Bundestag came into force as a result of the promulgation of the law, which took place on 18 August 1969.

By note verbale of 1 October 1969 the German Government supplied the Commission with brief explanations of the circumstances in which the amending law had been approved.

4. Only by letter of 30 July 1970 did the Commission give the German Government notice under Article 93 (2) of the treaty, requesting it in addition not to take any further decisions on the grant of aid in North Rhine-Westphalia from 1 December 1970.

5. The Commission published a communication in the Official journal of 14 august 1970 giving notice to all interested persons - other than Member States - to submit their comments on the extension of the period for the award of the investment grants in question.

In the view of the Commission this notification took effect, with regard to the persons to whom it was directed, on 20 August 1970.

6. On 17 February 1971 the Commission took the decision which it accuses the Federal Republic of Germany of disregarding ; this decision took effect on 24 February 1971, upon its notification to the German Government.

Article 1 of the decision provides that " the Federal Republic shall take without delay all necessary measures to put an end, in the mining regions of North Rhine-Westphalia, to the non-selective award of investment grants provided for by the first Paragraph of Article 32 of the law on the adaptation and rationalization of the German mining industry and mining regions (Kohlegesetz), as amended by Article 9 of the law of 18 August 1969 (Steueraenderungsgesetz) ".

7. Subsequently, the Commission commenced discussions with the German Government with a view to laying down the criteria for the " selective award " of subsidies, in order to enable the defendant to comply with the obligations arising out of the decision of 17 February 1971. Although these discussions ended in a solution by mutual agreement with regard to the geographical field of application of the decision, this was not the case with regard to the timing of its application by the German authorities. In implementing the decision of 17 February 1971 the latter adopted a transitional procedure which the Commission regards as a failure to comply with the obligations arising from the said decision.

Admissibility

8. The Federal Republic of Germany disputes the admissibility of the action, which has been brought on the basis of the first subparagraph to Article 93 (2), on the ground that the decision of the Commission of 17 February 1971, contrary to a formal requirement of the treaty, does not fix a period of time for compliance, but requires the system of aid in dispute to be ended " without delay " ; and that according to the categorical requirements of Article 93 (2) the determination of such a period of time is a necessary condition precedent to the reference of the matter to the Court in accordance with the special requirements of the provision in question.

9. In reality this plea is concerned not with the admissibility of the action but with the validity of the decision of 17 February 1971. The plea of inadmissibility must therefore be rejected.

10. In the second place the defendant pleads in particular the inadmissibility of the second head of the action under which the defendant is to be ordered to require from the recipients the repayment, within certain time limits, of the grants awarded after the decision of 17 February 1971. According to the defendant it follows from Article 171 of the treaty that in the course of an action directed against a Member State, the Court of justice must limit itself to finding a failure to fulfil an obligation, and has no power to order the member state to take any specific steps, so that it is in fact the responsibility of the member state alone to determine the necessary measures to comply with the judgment of the Court so as to eliminate the results of its failure to comply.

11. By the second subparagraph of Article 93 (2) " if the State ... does not comply with this decision within the prescribed time, the Commission ... may refer the matter to the Court of Justice direct ".

12. The head of submissions in question requests the Court to find that the defendant, by its failure to require the repayment by the recipients of the aid wrongly received, has not fulfilled an obligation incumbent upon it by virtue of the decision of 17 February 1971.

13. Such a request is admissible since the Commission is competent, when it has found that aid is incompatible with the common market, to decide that the state concerned must abolish or alter it. To be of practical effect, this abolition or modification May include an obligation to require repayment of aid granted in breach of the treaty, so that in the absence of measures for recovery, the Commission May bring the matter before the Court. Moreover an application from the Commission, within the scope of the procedure under Articles 169 to 171, for a declaration that in omitting to take specific measures, a member state has failed to fulfil an obligation under the treaty, is equally admissible.

Since the aim of the treaty is to achieve the practical elimination of infringements and the consequences thereof, past and future, it is a matter for the community authorities whose task it is to ensure that the requirements of the treaty are observed to determine the extent to which the obligation of the member state concerned May be specified in the reasoned opinions or decisions delivered under Articles 169 and 93 (2) respectively and in applications addressed to the Court.

This plea must therefore be rejected.

Merits

14. The infringement with which the Federal Republic of Germany is charged consists in having continued to award, by virtue of the amending law of 18 august 1969, investment grants in regions of north rhine-westphalia which no longer qualified for the grant of aid provided for under the law of 15 May 1968.

15. In the course of the proceedings the Commission referred to different dates on which the prohibition on the granting of this aid was to become effective.

16. In its formal notice of 30 July 1970 addressed to the German Government, the Commission required the latter to " ensure that new decisions on the granting of aid in accordance with paragraph 32 of the law relating to coal mining in north rhine-westphalia are no longer taken after 1 December 1970 ". The Commission does not however appear to have insisted that that time limit be observed.

17. On the other hand the Commission attaches legal consequences to the communication published in the Official journal of 14 august 1970, in the sense that from the date when the parties concerned were in a position to acquaint themselves with that communication they could no longer rely on a legally enforceable interest in the continuance of the legal provisions granting and extending the system in dispute. To ascertain the effect of the decision of 17 February 1971 in point of time it is appropriate to consider that question as a preliminary point.

18. The communication published in the Official Journal of 14 August 1970 intimates, in the first place, that the Commission has started the procedure provided for by the first subparagraph of Article 93 (2) of the EEC treaty against the schema of aid in question " as the non-selective award of such investment grants in all the mining regions of north rhine-westphalia can no longer be considered as compatible with the common market ". In the second place the communication invites all persons concerned to submit to the Commission their comments on the extension of the period for awarding the investment grants in question.

19. In accordance with the first sentence of Article 93 (2) the sole aim of this communication is to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action.

Taking account both of this intention and furthermore of the extremely summary nature of the terminology used for the description and explanation of the system of aid in question, it is impossible to deduce that the effect of that communication on the rights of individual persons would be that claimed by the Commission. The date in question must not therefore be taken into consideration in ascertaining the effect of the decision of 17 February 1971, the information contained in which thus constitutes the sole factor to be taken into account in adjudicating on the infringement alleged against the Federal Republic of Germany.

20. Under Article 93 (2) if the Commission finds that aid granted by a State is not compatible with the common market, it shall decide that the State concerned " shall abolish or alter " it.

By contrast with Article 93 (3) which involves the power of the Commission to take immediate interim measures, where necessary, decisions taken under Article 93 (2) can only take full effect on condition that the Commission indicates to the Member State concerned the aspects of the aid which are regarded as incompatible with the treaty and therefore subject to abolition or alteration.

21. In this connection it appears from the operative portion of the decision of 17 February 1971 that the Commission has required the Federal Republic of Germany to take all necessary measures to end the " non-selective " award of investment grants in the mining regions of North Rhine-Westphalia, without specifying the time by which, or the criteria on the basis of which, the defendant is to abolish or alter the aid in question.

The evidence available from the preamble to and the background of the decision gives grounds for finding at the most that the criteria of selection were to be of a territorial nature, in the sense that the extension of the system of aid was to benefit only certain regions which had been particularly affected by the coalcrisis.

22. The desired clarification of the geographical scope of the decision of 17 February 1971 was only arrived at in the course of meetings which the Commission had with the representatives of the German Government subsequent to the date of the decision.

It was only in a communication of 16 December 1971 that the Commission set out the geographical criteria for selection in the granting of aid by laying down certain rules of an economic nature which could be used to that end, and by enumerating the territorial divisions within which the continued award of investment grants might be considered as compatible with the treaty.

The definitive list of these divisions - larger than that envisaged by the communication of 16 December 1971 - only appears in the submissions of the application which commenced this action.

23. It therefore appears that in the absence of sufficient details with regard to one of the essential factors in the decision taken under Article 93 (2), the subject-matter of the obligation imposed on the Federal Republic of Germany remained indeterminate until, on the completion of the work carried out in collaboration with the representatives of the German Government, the Commission was in a position to specify to the latter, with the required precision, the scope of the aid referred to by the law extending that of 15 May 1968 and correspondingly, the limits within which this extension was not applicable.

Faced with this uncertainty regarding one of the essential factors of the prohibition declared by the Commission, the German authorities cannot be blamed for having taken the necessary steps to take account of the legitimate interests of investors operating within areas which were ultimately to be excluded from benefiting from the aid in question.

24. The action must therefore be dismissed.

25. By Article 69 (2) of the rules of procedure, the unsuccessful party shall be ordered to pay the costs;

The applicant has failed in its plea.

The COURT

Hereby :

1. Dismisses the action;

2. Orders the applicant to pay the costs.