1. 

In this application, the French Republic is asking the Court to annul, pursuant to the first paragraph of Article 173 of the EEC Treaty, an act entitled ‘Commission communication to the Member States — Application of Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector’ ( 1 ) (hereinafter ‘the communication’).

2. 

That communication, which was notified to the Member States by letter dated 8 November 1991, is in two parts. The first part (points 1 to 44) sets out the Commission's interpretation of the Court's case-law on public undertakings and the manner in which the Commission intends to apply the rules on State aid to the following public intervention: injections of capital, guarantees and returns on invested capital.

In the second part (point 45 et seq.), the Member States are asked to report to the Commission annually a series of detailed data relating to undertakings in the manufacturing sector whose turnover is more than ECU 250 million. It is in fact the second part of the communication against which the French Government's criticisms are directed; it argues that this altered the nature of the obligation imposed on the Member States by Directive 80/723/EEC ( 2 ) (hereinafter ‘the transparency directive’) to inform the Commission about financial relations between themselves and public undertakings.

3. 

Whilst I would refer to the Report for the Hearing for a detailed description of the legislative background to this dispute, I would point out that, according to its preamble, the essential aim of the transparency directive, which was adopted pursuant to Article 90(3), is to foster the effective application as regards public undertakings of Articles 92 and 93 of the Treaty on State aid. Transparency is ensured by the fact that the Member States are under a duty to ensure that assignments of funds to public undertakings, whether effected directly by the public authorities or through other public undertakings or through financial institutions, and the use to which those funds are actually put emerge (Article 1). The financial relations which are to be made transparent concern, inter alia, the setting off of operating losses, the provision of capital, nonrefundable grants or loans on privileged terms, the granting of financial advantages by forgoing profits or the recovery of sums due, the forgoing of a normal return on public funds used and compensation for financial burdens imposed by the public authorities (Article 3).

The obligation to inform the Commission about the relevant financial relations is governed by Article 5, under which Member States are required to keep the data in question at the Commission's disposal for five years (paragraph 1) and to supply them to it where it considers it necessary so to request (paragraph 2).

4. 

The dispute in question arose in relation to those provisions. The French Government considers that, unlike that which is provided in Article 5(2) of the transparency directive, the communication entails a systematic, generalized obligation on the Member States and the public undertakings concerned to provide the Commission with data on the financial relations in question, some of which at least are additional to those already provided for by the transparency directive.

More specifically, the French Government maintains that there has been an infringement of Article 190 of the Treaty and of the principle of legal certainty on the ground that the Commission has introduced — by an act lacking any legal basis — new legal obligations on the Member States and the public undertakings concerned. The Government goes on to argue that, in any case, the communication exceeds the limits of the discretion conferred on the Commission by Article 90(3) of the Treaty, having regard to the absence of necessity, the disproportionate nature of the constraints which it imposes and the discrimination exercised vis-à-vis public, as compared with private, undertakings.

For its part, the Commission asks the Court to declare the application inadmissible in so far as the contested act does not introduce any new obligation in comparison with those laid down by the transparency directive, as is shown by its content. In the alternative, it claims that the application should be dismissed.

5. 

As we know, the first paragraph of Article 173 empowers the Court to review the legality only of acts ‘other than recommendations or opinions’, that is to say, only of binding acts. Consequently, an act described as a ‘communication’ should, as an act which is, ex hypotbesi, not binding, not be open to challenge before the Court.

However, the relevant case-law is to the effect that, for the purposes of the permissibility of judicial review, the external form taken by the act is of scant relevance and the effects and content of the act itself are considered.

More specifically, with regard to the concept of challengeable acts for the purposes of the first paragraph of Article 173, the Court made it clear as long ago as the judgment in the AETR case ( 3 ) that an action for annulment must be available ‘in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects’. That approach was confirmed by both the judgments in the ‘internal instructions’ case ( 4 ) and in the ‘code of conduct’ case, ( 5 ) where the Court held that both the ‘internal instructions’ and the ‘code of conduct’, the acts at issue in the respective cases, were open to challenge in so far as they were intended to have legal effects.

6. 

In the instant case, the Court is faced with an act described as a communication, which does not indicate any legal basis and does not bear the signature of any member of the Commission, but which was adopted by the Commission as a body, was published in the C Series of the Official Journal and had as its addressees all the Member States, to which it was moreover notified by a letter from the competent member of the Commission.

As a result, although the act in question does not fall to be classed as a typical act, it was accompanied by drafting and publicity procedures such as to make the intention to bind its addressees beyond question. Moreover, this has not been contested at all by the Commission, which at no point in the proceedings ever questioned its binding scope; on the contrary, at the hearing it stated that failure to fulfil the obligations laid down in the communication would result in infringement proceedings being brought against the Member State in breach.

Consequently and in accordance with the aforementioned case-law of the Court, it is essential to consider the content of the act in order to check whether it contains new legal obligations in comparison with Article 5 of the transparency directive; from this perspective, the questions relating to admissibility should be assessed together with those relating to the substance.

7. 

The act at issue is concerned with the application of Articles 92 and 93 of the Treaty as well as with Article 5 of the transparency directive: the very title of the act reads as such, the Commission and the French Government have maintained that this is the case consistently and repeatedly both in their written observations and at the hearing, and, as will become clear, examination of the content of the act confirms this. That examination, however, will be confined to that part of the communication relating to the application of Article 5, since the French Government's criticisms allege only that the obligations arising under that provision for the Member States and indirectly for the public undertakings concerned have been altered.

As has already been mentioned, the communication in question affects only undertakings in the manufacturing sector with a turnover of more than ECU 250 million. It is with respect to such undertakings that the data on the financial relations in question must henceforward be reported to the Commission annually and no longer merely kept available to the Commission for five years and sent to it on request, as Article 5 of the transparency directive provides. In addition, and still as regards the undertakings to which the communication relates, the periodic (annual) reports provided for by the communication must also contain data relating to movements of capital within a given undertaking or group of undertakings and a whole series of detailed data for which no provision, or at least no express provision, is made in the transparency directive.

8. 

I would start by stating that it goes without saying that the Commission is entitled to ask for information which is supplementary or, at any event, not specified in the transparency directive in connection with an individual case and can do so not only the basis of Article 5(2) of the transparency directive but also on the basis of various other Treaty provisions (such as Article 5, 93 or even 155). For present purposes, however, it must be determined whether, as the French Government maintains, the communication introduced a systematic, generalized reporting obligation and whether the obligation to provide periodical (annual) reports including a series of supplementary data (over and above those covered by the transparency directive) goes beyond the provisions of Article 5(2). From this point of view, it is necessary to establish first of all whether the provision in question may be interpreted as empowering the Commission systematically to request data regarding the financial relations covered by the communication for all undertakings in a particular sector whose turnover exceeds a given figure.

In my view, the wording and the actual rationale of Article 5(2) rule out such an interpretation. I would observe that the obligation to provide the Commission with periodical reports, albeit confined to a certain type of undertaking, is certainly not laid down and cannot be regarded as being implicit in the wording of the provision in question. In addition, the very fact that the obligation is imposed on Member States to keep the data in question available to the Commission for five years suggests that the communication of those data — even only by a certain category of undertakings — cannot be construed as a systematic, generalized operation. Manifestly, Article 5(2) provides for a limited obligation to provide information, that is to say, in relation to individual cases in which the Commission has doubts whether a grant of public funds is incompatible with the Treaty rules on State aid. If that were not the case, Article 5(1) would be completely nugatory.

9. 

Although it does not deny that the obligations laid down by the communication are binding on the Member States, the Commission denies that the communication is of a regulatory nature, arguing instead that it constitutes simply a practical application of Article 5(2) to a specific case, namely that of manufacturing undertakings with a turnover exceeding ECU 250 million. In this connection, the Commission argues that it is particularly significant that, as far as France is concerned, only 14 undertakings are concerned by the communication and that the list of those undertakings, which the competent French authorities sent to the Commission even before the communication was notified, constitutes a ‘negotiated’ act in as much as it was drawn up by mutual agreement by the Commission and the French authorities.

To my mind, however, it is not relevant that the French authorities gave the Commission the names of the 14 undertakings as long ago as May 1991, that is to say, before the communication was notified, since die communication had been brought to the Member States' notice as a draft as early as July 1990. Neither does it seem relevant to me that the list of the 14 undertakings was drawn up by mutual agreement between the parties: as appears from the judgment in the ‘code of conduct’ case, ( 6 ) the fact that an act may have been adopted by mutual agreement is not capable of altering the legal position of the Member States, unless the possibility of adopting such a ‘negotiated’ act was expressly provided for by a Community provision. What is more, the Commission itself has maintained that the list in question, inasmuch as it has not been challenged, falls outside the scope of these proceedings.

10. 

In the light of the foregoing, it needs to be established whether the communication in question embodies, as the Commission maintains, a complex act made up of a cluster of individual acts specifically concerning each of the Member States and each of the undertakings or groups of undertakings concerned or else, as the French Government argues, an act of general scope.

The fact that the list in question covers only 14 undertakings is not decisive in this respect, since it is uncontested that only 14 French undertakings in the manufacturing sector have a turnover in excess of ECU 250 million: consequently, the 14 undertakings listed are, to all intents and purposes, all the French undertakings affected by the communication. Furthermore, the fact that it is possible to identify the addressees of an act cannot change the nature of the act in question.

As emerges from that which the Court has consistently held, an act cannot be regarded as being a decision or a body of individual decisions where their provisions are addressed in abstract and general terms to indeterminate categories of persons and they apply to objectively determined situations. ( 7 ) This is precisely the case with the communication at issue in these proceedings, which identifies, on the basis of objective criteria (membership of a particular sector and annual turnover in excess of a given figure), a whole series of existing and future undertakings.

Moreover, this is borne out by the Commission, since it admits that the list in question is subject to change, manifestly for the very reason that some of the undertakings listed may no longer fall within the scope of the communication and, vice versa, new undertakings may be added to the list because their annual turnover has exceeded ECU 250 million.

11. 

In the final analysis, I cannot accept the Commission's argument to the effect that the communication constitutes a mere measure applying and implementing the obligations set out in Article 5. Instead, it is a measure of general, abstract scope introducing a systematic obligation to report in relation to all the undertakings falling within its scope, undertakings which are identified on the basis of objective criteria.

Lastly, as regards the argument put forward at the hearing to the effect that the communication is essentially a circular addressed to the Commission's staff with a view to their requesting the Member States, pursuant to Article 5(2) of the transparency directive, for data on the financial relations of the undertakings which may be identified from the communication, I would merely observe that the communication is addressed to the Member States — and, moreover, was notified to them — and not to the Commission's departments.

12. 

In addition, as I have already mentioned, the communication requires a series of data to be provided which were not provided for — or at least not expressly — by the transparency directive. I refer primarily to the communication's inclusion within the field of application of Article 5 of capital movements within a given undertaking or group of undertakings.

Whilst it is true that, according to Article 1 of the transparency directive, its scope extends to funds made available through other public undertakings and this could cover the capital movements in question, nevertheless, in the absence of a stipulation to that effect, the wording of the provision suggests instead that such operations fall outwith the scope of the directive. This interpretation is confirmed by the letter by which the Commission notified the transparency directive to the Member States. It is expressly stated in that letter that the directive in question ‘ne comporte aucune ingérence dans la gestion économique et financière des entreprises et groupes publics: ne sont ainsi pas soumis aux exigences de la directive les mouvements de fonds à l'intérieur d'une entreprise publique ou groupe d'entreprises publiques, mouvements caractéristiques de la gestion autonome de toute entreprise ou groupe, privé come public’ [does not involve any interference in the economic and financial management of public undertakings and groups: accordingly, movements of funds within a public undertaking or a group of public undertakings, which are characteristic of the independent management of any undertaking or group, whether public or private, are not subject to the requirements of the directive].

13. 

The Commission argues, however, that the inclusion of the data in question answers the need of applying Article 5 consistently with the evolution of economic life and, above all, of the relevant case-law of the Court, which, in recent years, has shown that transactions carried out within a given group may also constitute aid within the meaning of Articles 92 and 93 of the Treaty, ( 8 ) with the result that the Commission is empowered to interpret and apply Article 5 differently from the accepted way of interpreting it in the past.

However, even if I wished to agree with the Commission's view that there is no reason for taking movements of capital outside the scope of its supervisory duty and that indeed this is now necessary, I could not but point out that the evolution of economic life and of the case-law should have met with an appropriate legislative response: that is to say, an amendment of the relevant measure.

14. 

Lastly, the communication at issue introduces the obligation to report a series of detailed data which cannot in every case be inferred from the wording and rationale of the relevant provisions of the transparency directive. I refer in particular to the obligation to report a number of accounting data, which in fact the undertakings in question are already bound to publish under the Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies. ( 9 ) However, I cannot agree with the Commission's argument that the communication of a number of data covered by the directive on annual accounts could not, in any event, entail new obligations for the Member States and the undertakings inasmuch as the undertakings already have to fulfil those accounting obligations by virtue of that directive. In the first place, as the French Government has correctly pointed out, the directive on annual accounts requires undertakings to publish their annual accounts, including a number of specific accounts data, but does not require them to create two separate, parallel accounting lines, of which one is to cover, for instance, loans and guarantees given by public undertakings (for example, public financial agencies) and the other similar transactions effected by private undertakings (for example, private banks). It is only too obvious that this would involve a supplementary burden on the undertakings: it is sufficient to mention that a single financial transaction may involve both private and public operators.

On top of this, it is not simply a question in this context of establishing whether the communication in question has or has not created new burdens in the sense of additional (accounting) costs but rather whether the obligation to provide a certain type of data does or does not simply specify obligations already embodied in the transparency directive. More specifically, it is a question of establishing whether the fact that the list of financial relations whose transparency must be secured, as contained in Article 3 of the directive in question, is not exhaustive means that the Commission is entitled to bring within it any such operation as it thinks appropriate without making any amendment.

I shall say forthwith that this does not seem acceptable. Whilst it is true that the list set out in Article 3 is not exhaustive, none the less it contains those data which are necessary in order to ensure the effective application of Articles 92 and 93, with the proviso that the Commission is entitled to seek supplementary information relating to a particular case when it deems it necessary. However, Article 5(2) affords no basis permitting the Commission to seek, in a systematic, generalized way, the accounts data in question.

15. 

It follows from the foregoing that, in so far as it imposes on the Member States, and indirectly on the public undertakings concerned, a systematic, generalized obligation to provide a series of detailed data, the communication goes beyond the provisions of Article 5(2) of the transparency directive. As a result, the communication in question constitutes an act intended to have legal effects distinct from those of Article 5(2) and hence is a challengeable act.

16. 

Having established that, I would note that the French Government claims that the act should be annulled in so far as (a) it infringes Article 190 and the principle of legal certainty and (b) it exceeds the discretion conferred on the Commission by Article 90(3) of the Treaty in view of the lack of necessity, the imposition of disproportionate constraints and discrimination between public and private undertakings.

Starting with (b), I would point out in the first place that the same pleas are involved as were considered by the Court in the judgment in France, Italy and United Kingdom v Commission ( 10 ) on the transparency directive. I would say forthwith that the answers given by the Court on that occasion are still valid in this case, bearing in mind the development of the Court's case-law on State aid and in particular on the various possible forms of a grant of resources involving a State aid within the meaning of Articles 92 and 93 of the Treaty.

17. 

More specifically, the need to broaden the scope of Article 5(2) is amply reasoned in the communication, where it is stated that further specification of the obligations set out in the transparency directive has become necessary as a result of the evolution of economic life and of the relevant case-law.

Likewise, the explanation given for the alleged discrimination between public and private undertakings on the ground that only the former are bound also to report on movements of capital within a given undertaking or group of undertakings is based on the nature of the ‘special’ relations existing between public undertakings and public authorities, with the result that it is not disproportionate to the intended objective, that is to say, the effective application of the aid rules vis-à-vis public undertakings. The question whether or not such movements of funds constitute State aid is different and will have to be resolved on a case-by-case basis.

In the final analysis, by adopting the communication in question, the Commission has not exceeded the discretion conferred on it by Article 90(3) of the Treaty.

18. 

Consequently, the only remaining question is whether the contested communication infringes Article 190 of the Treaty and the principle of legal certainty. The French Government argues that, in so far as it imposes new obligations, the communication should have been given a specific legal basis; it claims that that omission further aggravates the uncertainty as regards the actual nature of the new obligations laid down by the communication.

The alleged infringement of Article 190 refers, essentially, to the lack of a legal basis. However, it appears from the Court's case-law that, in order to satisfy the requirement to state reasons, ‘Community measures must include a statement of facts and law which led the institution in question to adopt them, so as to make possible review by the Court and so that the Member States and the nationals concerned may have knowledge of the conditions under which the Community institutions have applied the Treaty’ and that, in particular, failure to refer to a precise provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements ‘when the legal basis for the measure may be determined from other parts of the measure’. ( 11 )

In the light of this and since it is uncontested that the correct legal basis for an amendment of Article 5(2) of the transparency directive would have been Article 90(3), which does not provide for the consultation of other institutions or bodies, should it necessarily be inferred that, in adopting the communication in question, the Commission did not infringe any procedural rule and that therefore the omission of a legal basis does not constitute an infringement such as to necessitate the annulment of the act?

19. 

In that connection, I would first observe that the aforementioned case-law on legal bases was elaborated with regard to cases in which the binding effect of the contested act was not in issue, merely the fact that the only indication of any legal basis was a general reference to the Treaty; it was therefore necessary only to establish what consequences had to be attached to failure to specify the Treaty provision underlying the act in question.

In the case in question, the situation has a completely different complexion. The Court is faced with an act which, as emerges from a consideration of its content, amended, in relation to a particular category of public undertakings, the obligations imposed on the Member States by the transparency directive. This means that, in accordance with Article 90(3), that act should have been adopted in the form of a directive, as moreover was done in the case of an earlier amendment of the Commission, ( 12 ) which in fact did not give rise to any difficulties, even less to litigation before the Court.

It is therefore clear that in this case the omission of any legal basis, in an act moreover given an atypical name, is not relevant solely as regards any consequences with respect to the procedure for the adoption of the act in question, but primarily as regards the classification of the act itself, which is described as a ‘communication’ from the institution which issued it and hence as an act not included among those which are normally binding. In other words, the lack of any legal basis, as argued by the applicant, aggravates the uncertainty about the obligatory nature of the conduct contemplated by the communication and, as a result, raises an issue of legal certainty.

20. 

In this connection, I would venture to recall that in my Opinion on the ‘internal instructions’ case, to which I have already referred, I suggested that the Court should deal expressly with a preliminary issue: whether, in the absence of a minimum of essential formal requirements and hence regardless of the fact that, on completion of an examination of the specific content of the measure, a claim is found to the effect that it has legal effects, it may be considered that the measure itself is capable of having legal effects. ( 13 ) Although the Court did not expressly rule on that question, it confirmed indirectly that the formal criterion is completely irrelevant and that, therefore, it is necessary to categorize the act on the basis only of its content. However, in my view, the decision thus taken by the Court for the purposes of establishing the admissibility of the relevant application cannot yet be interpreted as meaning that any formal defects in the act are invariably and in any event irrelevant for the purposes of assessing the validity of the act itself. Moreover, such a conclusion would be at odds with the very rationale underlying the case-law in question: strengthening the judicial protection of individuals and, in so doing, legal certainty.

21. 

A ‘communication’ intended to have legal effects and capable in the abstract of having such effects inasmuch as it emanates from an institution competent to adopt binding acts in the sector in question is bound to give rise to confusion and uncertainties amongst its addressees, be they Member States or individuals, as to whether the conduct contemplated by it is obligatory. Manifestly, this is detrimental, not only to individuals, but also to the administration.

Then again, in the instant case the problem of certainty is made even more acute by the fact that in the aid sector the Commission's constant practice has been to adopt nonbinding communications, as the Court itself recognized in the judgment in Deufil, ( 14 ) which means that, when faced with an act entitled a ‘communication’, individuals would have to decide whether it was a ‘typical’ communication and hence nonbinding or an act which, although appearing from its name to be nonbinding, mandatorily imposed particular conduct. In other words, individuals are placed in a position of uncertainty not so much and not only with regard to the legal basis but with regard to the more important aspect, that is to say, whether or not the conduct contemplated by the act for them to take is or is not compulsory.

In this connection, it is worth recalling that, as the Court has consistently held, ‘Community legislation must be certain and its application foreseeable by those subject to it’, ( 15 ) which is in compliance with the principle of legal certainty forming part of the Community legal order. ( 16 ) It seems to me that that statement by the Court applies, with even more reason, in a case such as the present one in which it is not a single provision which gives rise to ambiguity but the whole act, in view of the fact that it is, on the face of it, nonbinding, whereas it is binding and is intended to be so.

The ambiguity of the act in question also emerges from the stance adopted by the Commission itself in the course of the proceedings. It argued, on the one hand, that the act did not impose new obligations and that hence it was not bound to adopt a directive and, on the other, that the obligations imposed by the act had to be complied with in any event or infringement proceedings would be brought.

22. 

In the final analysis, I do not consider that I can agree with the argument put forward by the Commission to the effect that the choice of the legal basis and the form have particular importance only as regards acts whose adoption depends on an ad hoc procedure or involves a particular institution having competence, which is not the case here, since the exclusive competence of the Commission is uncontested.

I consider that the fact that Article 90(3), the relevant provision in this case, gives exclusive competence to the Commission to adopt binding acts in the sector in question does not authorize that institution to do so in the most convenient form to it, for instance, by adopting an act which is typically nonbinding, especially since Article 90(3) makes provision solely for the adoption of directives and decisions — and therefore typical, binding acts within the meaning of Article 189. In this connection, I consider it not without relevance to draw attention to that which the Court has held with regard to typically nonbinding acts, such as recommendations: these ‘are generally adopted by the institutions of the Community when they do not have the power under the Treaty to adopt binding measures or when they consider that it is not appropriate to adopt more mandatory rules’. ( 17 )

Lastly, I would add that it does not seem to me to involve a great effort on the part of the Commission to adopt, in accordance with that which the Treaty prescribes, ‘typical’ acts with a legal basis from which it is clear and unequivocal that they are acts binding on their addressees, ( 18 ) a fortiori where it has the power to do so, as emerges from the aforementioned statement of the Court with regard to recommendations.

23. 

In the light of the foregoing, I therefore propose that the Court should uphold the application and order the Commission to pay the costs.