Opinion of the Advocate General — ECLI:EU:C:2003:645
Date: 2003-11-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Judgment 1. State aid – Prohibition – Derogations – Aid to shipbuilding – Directive 90/684 – Aid for East German shipyards – Criteria governing derogations – Aim of reducing excess capacity – Aim applicable to the means of production and not production itself – Commission’s discretion (Council Directives 90/684, Art. 10a(2)(a), and 92/68) 2. Appeals – Pleas in law – Plea against a ground of the judgment not necessary to support the operative part – Plea inoperative 1. For the application of Directive 90/684 on aid to shipbuilding and Directive 92/68 amending Directive 90/684, it cannot be deduced from the aim of reducing ‘excess capacity’, which applies to the means of production which the shipyards are likely to use and not to their production itself, that a capacity restriction laid down in the decisions taken on the basis of those directives implies of itself a restriction on production. Since the Community legislature had thus refrained from laying down itself in Directive 90/684 how the notion of capacity of shipyards was to be defined and the means by which the reduction in their excess capacity was to be achieved, the Commission had a certain measure of discretion in setting the conditions to which the proposed aid was to be subject in order to ensure that it remained compatible with the common market within the framework of the derogation scheme put into place by that directive in favour of the shipyards and did not prejudice the aim of reducing excess capacity set out in Article 10a of the directive. However, it was for the Commission to state those conditions clearly and unequivocally. (see paras 38, 40-41) 2. In the context of an appeal, a plea in law raised against a superfluous ground in a judgment of the Court of First Instance, the operative part of which is sufficiently founded in law on other grounds, must be rejected. (see para. 49)