CJEC, July 6, 1982, No 188-80

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

1. By applications lodged at the Court registry on 16, 18 and 19 September 1980 respectively, the French republic, the Italian Republic and the United Kingdom brought three actions under the first Paragraph of Article 173 of the EEC treaty for a declaration that Commission directive no 80-723-EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (Official Journal 1980 L 195, p. 35) is void. The federal Republic of Germany and the kingdom of the Netherlands intervened in support of the conclusions of the Commission.

2. The directive, which was adopted on the basis of Article 90 (3) of the treaty, requires the Member States to keep available for five years information concerning public funds made available by public authorities to public undertakings and also concerning the use to which those funds are actually put by those undertakings. It is clear from the preamble to the directive that its essential objective is to promote the effective application to public undertakings of the provisions contained in Articles 92 and 93 of the treaty concerning state aids. Moreover, the preamble emphasizes the principle of equal treatment of public and private undertakings as well as the need for transparency of financial relations between the former and the Member States because of the complexity of those relations.

3. Although they differ on certain points, the submissions relied upon by the applicant governments may be summarized substantially as follows :

1. Lack of competence on the part of the Commission ;

2. Absence of necessity and breach of the principle of proportionality ;

3. Discrimination against public undertakings ;

4. Infringement of Articles 90, 92 and 93, inasmuch as the directive defines the concepts of public undertaking and State aid ;

5. Failure to respect the rules defining the scope of the EEC, ECSC and EAEC Treaties ;

6. Failure to State the reasons on which the Directive is based and to respect the principle of equality in relation to the exemptions provided for by the Directive.

First submission (Commission's lack of competence)

4. According to the United Kingdom, by adopting the contested Directive the Commission committed a breach of the very principles which govern the division of powers and responsibilities between the Community institutions. It is clear from the treaty provisions governing the institutions that all original law-making power is vested in the Council, whilst the Commission has only powers of surveillance and implementation. That division of powers is confirmed by the specific enabling rules in the treaty, virtually all of which reserve to the Council the power to adopt Regulations and Directives. The same division of responsibilities is to be found in particular in the rules on competition. Those provisions themselves confer functions of surveillance on the Commission, whereas it can legislate only within the limits of a specific and express power delegated to it by a measure of the Council.

5. Again according to the United Kingdom, the provisions of the treaty which exceptionally confer on the Commission the power to issue Directives must be interpreted in the light of the foregoing considerations. Commission Directives are not of the same nature as those adopted by the Council. Whereas the latter may contain general legislative provisions which may, where appropriate, impose new obligations on Member States, the aim of the former is merely to deal with a specific situation in one or more Member States. As for Article 90 (3), such a limited aim is suggested by the very wording of the provision, which States that the Commission is to "address" appropriate Directives or Decisions to Member States.

6. There is, however, no basis for that argument in the treaty provisions governing the institutions. According to Article 4, the Commission is to participate in carrying out the tasks entrusted to the Community on the same basis as the other institutions, each acting within the limits of the powers conferred upon it by the treaty. Article 155 provides, in terms which are almost identical to those used in Article 145 to describe the same function of the Council, that the Commission is to have its own power of Decision in the manner provided for in the treaty. Moreover, the provisions of the chapter which lays down general rules concerning the effects and content of measures adopted by the institutions, in particular those of Article 189, do not make the distinction drawn by the United Kingdom between Directives which have general application and others which lay down only specific measures. According to the first Paragraph of that Article, the Commission, just as the Council, has the power to issue Directives in accordance with the provisions of the treaty. It follows that the limits of the powers conferred on the Commission by a specific provision of the treaty are to be inferred not from a general principle, but from an interpretation of the particular wording of the provision in question, in this Case Article 90, analysed in the light of its purpose and its place in the scheme of the treaty.

7. In that regard, it is not possible to draw any conclusions from the fact that most of the other specific provisions of the treaty which provide a power to adopt general measures confer that power on the Council, acting on a proposal from the Commission. Nor can any distinction be drawn between provisions providing for the adoption of Directives according to whether they use the word "issue" or "address". According to Article 189, the Directives as well as Decisions, both of the Council and of the Commission, are addressed to parties which, in so far as Directives are concerned, are necessarily Member States. In the Case of a provision providing for the adoption of both Directives and Decisions addressed to Member States, the word "address" therefore simply constitutes the most appropriate common expression.

8. In support of the submission concerning the Commission's lack of competence, the three applicant Governments claim that the rules contained in the contested Directive could have been adopted by the Council. As the purpose of the Directive is to enable the Commission to ensure that the Member States respect the obligation to notify it in accordance with Article 93 (3) of any plans to grant or alter State aid, and as Article 94 confers on the Council the power in particular to determine the conditions in which that Paragraph is to apply, the rules in question fall within the competence of that institution by virtue of that Article. In any event, such rules fall within the powers of the Council by virtue of Article 213 or, alternatively, Article 235. Since this is therefore a sphere in which the Council is competent, it is not possible, according to the applicant Governments, to acknowledge that the Commission has concurrent powers under other provisions of the treaty.

9. The Commission, supported by the Federal Republic of Germany, insists that the Directive covers measures which are in advance of the procedure provided for in Article 93 and that for that reason Article 94 is inapplicable. It also contends that Article 213 does not concern information which is at the disposal of the Member States and which they must supply to the Commission upon request pursuant to their general obligation to cooperate laid down in Article 5. Article 235 is also inapplicable, since it presupposes that there is no other power of action. The Netherlands Government, for its part, emphasizes especially the specific character and importance of Article 90 as an independent provision.

10. The arguments put forward by the applicant Governments relating to Articles 213 and 235 must be rejected. Indeed, Article 213, which is to be found in the part of the treaty concerning general and final provisions, does not affect the powers which are conferred upon the Commission by particular provisions of the treaty. Article 235 cannot, for the reason given by the Commission, be considered to be applicable in this Case.

11. On the other hand, in order to assess the argument relating to Article 94, it is necessary to compare the provisions of that Article with those of Article 90 in the light of the objectives and purposes of the two Articles.

12. In that regard, it should be noted that the two provisions have different objectives. Article 94 is one of a set of provisions which regulate the sphere of aids granted by States, regardless of the form and recipients of such aids. On the other hand, Article 90 concerns only undertakings for whose actions States must take special responsibility by reason of the influence which they may exert over such actions. It emphasizes that such undertakings are subject to all the rules laid down in the treaty, subject to the provisions contained in Paragraph 2 ; it requires the Member States to respect those rules in their relations with those undertakings and in that regard imposes on the Commission a duty of surveillance which may, where necessary, be performed by the adoption of Directives and Decisions addressed to Member States.

13. In addition to that difference in their objectives, there is a difference in the conditions laid down for the exercise of the powers conferred on the Council and Commission by the two provisions. Article 94 authorizes the Council to make any appropriate Regulations for the application of Articles 92 and 93. On the other hand, the power conferred on the Commission by Article 90 (3) is limited to the Directives and Decisions which are necessary to perform effectively the duty of surveillance imposed upon it by that Paragraph.

14. In comparison with the Council's power under Article 94, that which is conferred upon the Commission ty Article 90 (3) thus operates in a specific field of application and under conditions defined by reference to the particular objective of that Article. It follows that the Commission's power to issue the contested Directive depends on the needs inherent in its duty of surveillance provided for in Article 90 and that the possibility that rules might be laid down by the Council, by virtue of its general power under Article 94, containing provisions impinging upon the specific sphere of aids granted to public undertakings does not preclude the exercise of that power by the Commission.

15. It follows from all those considerations that the first submission relied upon by the applicant Governments must be rejected.

Second submission (absence of necessity)

16. The French and Italian Governments deny that the rules contained in the Directive are necessary to enable the Commission effectively to perform the task of surveillance conferred upon it by Article 90. They consider that there is total legal separation between the State and public undertakings in relation to finance. The funds made available to public undertakings by public authorities appear in legislative budgetary measures as well as in annual accounts and reports of undertakings. In a democratic society information is available concerning the State ' s relations with public undertakings which is at least as complete as that concerning its relations with private undertakings and much more detailed than that concerning relations between private undertakings.

17. The Commission refers to the fourth and fifth recitals in the preamble to the Directive, which State that the complexity of the financial relations between national public authorities and public undertakings tends to hinder the performance of the Commission's duty of surveillance and that a fair and effective application of the aid rules in the treaty to both public and private undertakings will be possible only if these financial relations are made transparent. During the oral procedure, the Commission and the Federal Republic of Germany cited examples to show that those relations were not sufficiently transparent to enable the Commission to establish whether or not State aids had been granted to public undertakings.

18. In view of the diverse forms of public undertakings in the various Member States and the ramifications of their activities, it is inevitable that their financial relations with public authorities should themselves be very diverse, often complex and therefore difficult to supervise, even with the assistance of the sources of published information to which the applicant Governments have referred. In those circumstances there is an undeniable need for the Commission to seek additional information on those relations by establishing common criteria for all the Member States and for all the undertakings in question. So far as the precise determination of those criteria is concerned, the applicant Governments have not established that the Commission has exceeded the limits of the discretion conferred upon it by Article 90 (3).

19. It follows that the submission concerning the absence of necessity must be rejected. The same applies to the criticism made of the Commission, in particular by the Italian Government, relating to the lack of proportionality.

Third submission (discrimination against public undertakings as compared with private undertakings)

20. The French and Italian Governments claim that it is clear both from Article 222 and from Article 90 that public and private undertakings must be treated equally. The effect of the Directive is to place the former in a less favourable position than the latter, especially in so far as it imposes on public undertakings special obligations, in particular in relation to accounts, which are not required of private undertakings.

21. In that regard, it should be borne in mind that the principle of equality, to which the Governments refer in connection with the relationship between public and private undertakings in general, presupposes that the two are in comparable situations. Within the limits laid down by the applicable legislation, private undertakings determine their industrial and commercial strategy by taking into account in particular requirements of profitability. Decisions of public undertakings, on the other hand, may be affected by factors of a different kind within the framework of the pursuit of objectives of public interest by public authorities which may exercise an influence over those Decisions. The economic and financial consequences of the impact of such factors lead to the establishment between those undertakings and public authorities of financial relations of a special kind which differ from those existing between public authorities and private undertakings. As the Directive concerns precisely those special financial relations, the submission relating to discrimination cannot be accepted.

Fourth submission (infringement of Articles 90, 92 and 93, inasmuch as the Directive defines the concepts of public undertaking and State aid)

22. The French and Italian Governments maintain that Articles 2 and 3 of the Directive amplify the provisions of Articles 90, 92 and 93 of the treaty without any legal foundation, inasmuch as they define the concept of public undertaking and determine the financial relations which, in the Commission ' s opinion, may constitute State aids.

23. Those criticisms are not justified. In relation to the definition contained in Article 3 of the financial relations which are subject to the rules contained in the Directive, it is sufficient to State that that is not an attempt by the Commission to define the concept of aid which appears in Articles 92 and 93 of the treaty, but only a Statement of the financial transactions of which the Commission considers that it must be informed in order to check whether a member State has granted aids to the undertakings in question, without complying with its obligation to notify the Commission under Article 93 (3). As was Stated above in relation to the second submission, it has not been established that the Commission has thereby exceeded the limits of the discretion conferred upon it by Article 90 (3).

24. In relation to the provisions of Article 2, which defines the concept of public undertaking "for the purpose of this Directive", it should be emphasized that the object of those provisions is not to define that concept as it appears in Article 90 of the treaty, but to establish the necessary criteria to delimit the group of undertakings whose financial relations with the public authorities are to be subject to the duty laid down by the Directive to supply information. In order to assess that delimitation, which is moreover indispensable in order to make known to the Member States the extent of their obligations under the Directive, it is therefore necessary to compare the criteria laid down with the considerations on which the duty of surveillance imposed on the Commission by Article 90 is based.

25. According to Article 2 of the Directive, the expression "public undertakings" means any undertaking over which the public authorities may exercise directly or indirectly a dominant influence. According to the second Paragraph, such influence is to be presumed when the public authorities directly or indirectly hold the major part of the undertakings ' s subscribed capital, control the majority of the votes, or can appoint more than half of the members of its administrative, managerial or supervisory body.

26. As the Court has already Stated, the reason for the inclusion in the treaty of the provisions of Article 90 is precisely the influence which the public authorities are able to exert over the commercial Decisions of public undertakings. That influence may be exerted on the basis of financial participation or of rules governing the management of the undertaking. By choosing the same criteria to determine the financial relations on which it must be able to obtain information in order to perform its duty of surveillance under Article 90 (3), the Commission has remained within the limits of the discretion conferred upon it by that provision.

27. It follows that the fourth submission must also be rejected.

Fifth submission (failure to respect the rules defining the scope of the EEC, ECSC and EAEC Treaties)

28. The French Government emphasizes that the definition of public undertakings which appears in Article 2 of the Directive is totally general in character and that the exemption laid down in Article 4 concerning the energy sector, including in the Case of nuclear energy the production and enrichment of uranium, the reprocessing of irradiated fuels and the preparation of materials containing plutonium, implies that, subject to that reservation, the Directive applies to public undertakings covered by the ECSC and EAEC Treaties. Since a measure of secondary law adopted within the framework of the EEC treaty cannot regulate a matter covered by positive rules in the other Treaties, the French Government claims in the alternative that the Directive should be declared void in so far as it covers undertakings within the purview of the ECSC and EAEC Treaties.

29. The Commission admits that, under Article 232 (1) of the EEC treaty and by reason of the rules contained in the ECSC treaty concerning aids granted to undertakings covered by that treaty, the Directive cannot apply to such undertakings. In relation to undertakings in the nuclear sector, it contends that the EAEC treaty does not contain any provisions on State aids. Consequently, Articles 92 and 93 of the EEC treaty and hence the Directive are applicable to undertakings within that sector, subject to the exceptions expressly provided for in Article 4 of the Directive.

30. According to Article 232 (1) of the EEC treaty, the provisions of the treaty are not to affect the provisions of the treaty establishing the European coal and steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that treaty for the functioning of the common market in coal and steel.

31. As Article 90 (3) does in fact concern the powers of the institutions and as the contested Directive imposes obligations on Member States in the sphere of aids, on which the ECSC treaty itself contains rules affecting Member States and undertakings operating on the market in coal and steel, it follows directly from Article 232 of the EEC treaty that the contested Directive cannot apply to relations with such undertakings. For that reason, the Directive is not vitiated by any illegality on that point, although it would undoubtedly have been preferable in the interest of legal clarity if the exclusion of those undertakings had been apparent from the actual terms of the Directive.

32. On the other hand, so far as the relationship with the EAEC treaty is concerned, Article 232 (2) of the EEC treaty States merely that the provisions of the latter are not to derogate from those of the former. The French Government has not established that the provisions of the Directive derogate from the provisions of the EAEC treaty. It follows that that submission cannot be accepted.

Sixth submission (failure to State the reasons on which the Directive is based and to respect the principle of equality in relation to the exemptions under the Directive)

33. Article 4 of the Directive excludes from its scope, apart from the energy sector, public undertakings whose turnover excluding taxes has not reached a total of 40 million European units of account during the two preceding financial years, undertakings which supply services without affecting trade between Member States to an appreciable extent and undertakings in the areas of water, transport, posts and telecommunications and credit.

34. In the Italian Government's opinion, those exemptions involve discrimination in respect of which the reasons are not Stated. It takes the view that exemptions according to sector may be permitted only in the absence of competition within the Community in the sector in question.

35. Apart from the fact that that submission tends, if anything, to widen the scope of the Directive, it is unfounded. Indeed, the 12th recital in the preamble to the Directive States that activities which stand outside the sphere of competition or which are already covered by specific Community measures which ensure adequate transparency should be excluded, as well as public undertakings belonging to sectors of activity for which distinct provision should be made and those whose business is not conducted on such a scale as to justify the administrative burden of ensuring transparency. All of those considerations, at least one of which applies to each of the sectors excluded by Article 4 of the Directive, contain sufficiently objective criteria to justify an exemption from the scope of the Directive.

36. It must therefore be concluded that the applications made by the three Governments have not revealed any factors capable of justifying a declaration that the contested Directive is void, even in part. The applications should therefore be dismissed.

Costs

37. Under Article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading.

38. Since the three applicant Governments have failed in their submissions, they must be ordered to pay the costs. The same applies to the French Government in its capacity as intervener in Cases 189 and 190-80.

39. Of the Governments which intervened in support of the Commission ' s conclusions, only the Netherlands Government contended that the applicants should be ordered to pay the costs. It is therefore appropriate to order the French Republic, the Italian Republic and the United Kingdom to bear, in addition to their own costs, those of the Commission and the kingdom of the Netherlands.

On those grounds,

THE COURT

Hereby :

1. Dismisses the applications ;

2. Orders the French Republic, the Italian Republic and the United Kingdom to bear, in addition to their own costs, those of the Commission and the kingdom of the Netherlands.