Keywords
Summary

Keywords

1 Actions for annulment - Time-limits - Point from which time starts to run

(ECSC Treaty, Art. 33, third para.)

2 ECSC - Steel aid - Concept - Capital contributions - Waivers of debts - Loan guarantees - Bridging loans - Covered

(ECSC Treaty, Art. 4(c))

3 ECSC - Steel aid - Concept - Aid granted through a State-controlled body which is a shareholder of the recipient undertaking - Covered

(ECSC Treaty, Arts 4(c) and 83)

4 ECSC - Steel aid - Concept - Assessment on the basis of the private investor criterion

(ECSC Treaty, Art. 4(c); EC Treaty, Art. 92)

5 ECSC - Steel aid - Prohibited - Commission authorisation possible - Conditions

(ECSC Treaty, Arts 4(c) and 95; Commission Decision No 3855/91/ECSC)

6 Procedure - Intervention - Application in support of the form of order sought by one of the parties but relying on a different argument - Whether admissible - Freedom to choose the pleas in law relied on - Scope of that freedom

(Rules of Procedure of the Court of First Instance, Art. 116(3) and (4))

7 Community law - Principles - Legal certainty - Concept - Circumstances in which breach of that principle may be pleaded - Conditions

8 Acts of the institutions - Statement of reasons - Obligation - Scope - ECSC decision

(ECSC Treaty, Art. 15, first para.)

9 ECSC - Steel aid - Prohibited - Commission authorisation possible - Conditions - Economic viability of the recipient undertaking - Maintenance of competition

(ECSC Treaty, Art. 2)

Summary

1 Under the third paragraph of Article 33 of the ECSC Treaty, actions for annulment must be instituted within one month of the notification or publication, as the case may be, of the decision or recommendation. In accordance with the principle of legal certainty, individuals must be in a position to rely on the clear wording of that provision. Accordingly, the time-limits for bringing actions must be calculated on the basis of the dates on which decisions and recommendations of the Commission are notified and published.

2 Aid for the purposes of Article 4(c) of the ECSC Treaty includes any payment in cash or in kind made in support of an undertaking, other than the payment by the purchaser or consumer for the goods or services which the undertaking produces, and also any intervention which alleviates the normal burdens on an undertaking's budget. Aid for those purposes thus encompasses capital contributions, advances made on such contributions, waivers of loan debts, State guarantees for loans, and bridging loans.

3 In determining whether aid constitutes State aid, no distinction should be drawn between aid granted directly by the State or a local authority and aid granted by public or private bodies established or appointed by the State or the local authority to administer the aid. Neither the fact that such a body was shareholder of the company at the time when it put into operation intervention measures in its favour, nor Article 83 of the ECSC Treaty can preclude such intervention from being classed as State aid. Indeed the fact that Article 83 provides that `the establishment of the Community shall in no way prejudice the system of ownership of ... undertakings' does not preclude Article 4 of the ECSC Treaty from being relied on as against State authorities which, as shareholders of undertakings, adopt measures which are not contributions of risk capital in accordance with the normal practice of companies in a market economy.

4 When assessing the compatibility with the common market of measures adopted by the public authorities in favour of an undertaking, the relevant criterion is whether the undertaking could have obtained the amounts in question on the capital market, that is to say, whether a private investor would have effected the transaction in question on the same terms and conditions. To challenge the relevance of that criterion in the steel sector on the ground that in practice that sector inevitably requires injections of public funds is tantamount to refuting the applicability in principle of the prohibition laid down in Article 4(c) of the ECSC Treaty, which specifically concerns subsidies or aid granted by States. The private investor criterion is as relevant under Article 4 of the ECSC Treaty as it is under Article 92 of the EC Treaty, inasmuch as it serves to identify advantages which distort or threaten to distort competition.

5 Article 4(c) of the ECSC Treaty does not prohibit the Commission from authorising, by way of derogation, State aid which does not come within the categories mentioned in the Steel Aid Code, on the basis of the first and second paragraphs of Article 95 of the Treaty. None the less, that is not an obligation for the Commission but merely a discretionary power which it exercises when it is of the opinion that the aid notified is necessary in order to achieve the aims of the Treaty, and particularly in order to deal with unforeseen situations. It follows that the Commission, which must act in the interests of the Community, may use that power only in exceptional cases.

6 As indicated by Article 116(4) of the Rules of Procedure of the Court of First Instance, an intervener may not go beyond the form of order sought by the party in support of whom it is intervening, but it may freely choose its pleas and arguments in support of that form of order. Nor, moreover, is that freedom of choice limited to the arguments relied on at the stage of the administrative procedure. Of course, a Member State intervening in an action for annulment of a Commission decision cannot rely on matters of fact not known to the Commission and which it would not have wished to divulge to the Commission during the administrative procedure, but there is nothing to prevent it from raising against the final decision a plea in law not raised in the administrative procedure.

7 The principle of legal certainty aims to ensure that situations and legal relationships governed by Community law remain foreseeable. To that end, it is essential that the Community institutions observe the principle that they may not alter measures which they have adopted and which affect the legal and factual situation of persons, so that they may amend those acts only in accordance with the rules on competence and procedure. However, breach of that principle cannot effectively be pleaded if the person whose legal and substantive position was affected by the decision in question did not observe the conditions laid down in it.

8 The statement of reasons required under the first paragraph of Article 15 of the ECSC Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure so as to defend their rights and to enable the Community judicature to carry out its review. It is not necessary for the reasoning to go into all the relevant facts and points of law, however, inasmuch as it must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

9 The Commission cannot authorise aid to an undertaking which is not commercially or financially viable, merely to secure, by artificial means, continued employment in that undertaking, but thereby disturbing the equilibrium of the common market and placing competing steel undertakings at a disadvantage without any economic justification. Neither the right to work nor Article 2 of the ECSC Treaty - under which the Community is to safeguard `continuity of employment' whilst ensuring that `fundamental and persistent disturbances in the economies of Member States' are not provoked - can be interpreted as placing the Commission under an obligation to authorise aid in such circumstances. Such an interpretation would not be consonant with the principle of proportionality which, in matters of State aid, demands, inter alia, that healthy competition be maintained on the common market.