Opinion of the Advocate General — ECLI:EU:C:2002:307
Date: 2002-05-28
Language of the case: German
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 grounds for the Commission's refusal to apply the derogation in Article 92(2)(c) of the Treaty to the facts of the case. 151 Nevertheless, [that decision] was adopted in a context that was well known to the German Government and the applicants and forms part of a consistent line of decision-making practice, particularly in relation to those parties. Such a decision may be supported by a summary statement of reasons (Case 73/74 Papiers Peints v Commission [1975] ECR 1491, paragraph 31; Case T-34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II-905, paragraph 35). 152 Since 1990, in its relations with the Commission, the German Government has referred many times to Article 92(2)(c) of the Treaty, insisting on the importance of that provision for the recovery of the former East Germany (see, in particular, the letter from Chancellor Kohl to President Delors of 9 December 1992, cited above). 153 The arguments put forward by the German Government in that regard were rejected in various letters or decisions of the Commission [see, in particular, the Commission notice pursuant to Article 93(2) of the EEC Treaty to other Member States and other parties concerned regarding the proposal by the German Government to award State aid to the Opel group in support of its investment plans in the new Länder (OJ 1993 C 43, p. 14); the Commission notice pursuant to Article 93(2) of the EEC Treaty to other Member States and interested parties concerning aid which Germany proposes to grant Rhône-Poulenc Rhotex GmbH (OJ 1993 C 210, p. 11); Commission Decision 94/266/EC of 21 December 1993 on the proposal to award aid to SST-Garngesellschaft mbH, Thüringen (OJ 1994 L 114, p. 21); the Mosel I decision; [(31)] and Commission Decision 94/1074/EC of 5 December 1994 on the German authorities' proposal to award aid to Textilwerke Deggendorf GmbH, Thüringen (OJ 1994 L 386, p. 13)]. 154 In that respect, particular importance should be accorded to the Mosel I decision, in which the Commission declared some of the aid in question, amounting to DEM 125.2 million, incompatible with the common market after excluding, on grounds identical to those used in the [contested decision], the possibility that that aid might be covered by Article 92(2)(c) of the Treaty. It should be noted, moreover, that neither the applicants nor the German authorities have brought any action against that earlier decision. 155 Even though, between the adoption of the Mosel I decision and the adoption of the [contested decision], the Commission, the German authorities and the applicants have had numerous contacts revealing their continuing differences of opinion concerning the applicability of Article 92(2)(c) of the Treaty to the aid in question (see Points V and VI of the [contested decision]), it should also be noted that no specific or new argument has been put forward in that context, particularly as to the existence of a causal link between the position of the motor-vehicle industry in Saxony after German reunification and the division of Germany (see paragraph 141 above). 156 In those circumstances, the Court finds that the applicants and the Federal Republic of Germany were sufficiently informed of the grounds for the [contested decision] and that, in the absence of more specific arguments, the Commission was not obliged to state the grounds for it more extensively. 115. The appellants, supported by the German Government, maintain that the contested judgment infringes Article 190 of the Treaty in that it unlawfully reduces the requirements of the obligation to state reasons. They allege that the contested decision does not in fact enable either them or the Court of First Instance to know the reasons for which the Commission refused to apply Article 92(2)(c) of the Treaty. 116. The Commission submits that, by this plea, the appellants are in fact criticising an appraisal of the facts by the Court of First Instance, even though they assert that their argument refers to a problem of law, that is, a misinterpretation of Article 190 of the Treaty. 117. However, I do not share this view of the Commission. 118. In Commission v Daffix, (32) the Court of Justice held, in paragraphs 34 and 35, that: ... [C]ontrary to the findings of the Court of First Instance ..., the contested decision gave a sufficiently precise indication of the conduct with which the official was charged. ... In so far as it considered that the contested decision did not indicate sufficiently precisely the conduct with which Mr Daffix was charged and that hence Article 190 of the Treaty and Article 25 of the Staff Regulations had been infringed, the Court of First Instance committed an error of law. (33) 119. This judgment confirms that whether the reasons for a decision are stated sufficiently is a matter of law and not of fact. In finding whether the reasons for a decision are stated sufficiently, the Court of First Instance is not ascertaining a fact but already classifying it in law. But the legal classification of a fact relates to a point of law and, as such, is subject to review by the Court of Justice. (34) 120. Let us now consider the individual arguments advanced by the appellants in their second plea in law. First of all, they believe that the Court of First Instance erred in holding that the decisions cited at paragraphs 153 and 154 of the contested judgment could contribute to the statement of reasons for the contested decision even though, first, this latter makes no reference to those other decisions and, second, the reasons for those other decisions are no more fully stated than those of the contested decision itself. 121. The Commission rightly points out that the Court of First Instance referred to those decisions - which had all been published and which the appellants cannot therefore claim to have been unaware of - as part of its description of the context of the contested decision, which, as the Court has consistently held, contributes to the statement of reasons for a decision. (35) 122. There was therefore no need for the contested decision to refer to those decisions or for the reasons for those decisions to be stated more explicitly than in the contested decision. A reference to earlier reasons would not be a context but the consideration of an explicit statement of grounds that would make reference to a context redundant. 123. The appellants also claim that it is not sufficient for the persons with an interest in a decision to be able to deduce the reasons for it by comparing the decision in question with similar earlier decisions. 124. In this connection, they refer to the judgment in Control Data Belgium v Commission (36) where, in paragraph 15, the Court held that ... it is not sufficient that the Member States as addressees of the decision, are aware of the reasons as a result of their participation in the preliminary procedure and that the applicant the person directly and individually concerned, is able to deduce these reasons by comparing the decision in question with similar earlier decisions. It is further necessary that the applicant should be enabled in practice to defend its rights and the Court should be able effectively to exercise its power of review on the basis of the statement of reasons. ... 125. However, the context to that judgment is very specific because the issue was whether two particular types of computers could be regarded as scientific apparatus and so be exempted from duty under the Common Customs Tariff, as opposed to other computers for which such exemption had been refused in a serious of earlier decisions. (37) 126. In the present case, by contrast, the Court of First Instance established that, during the administrative procedure, the applicants had not put forward any specific or new argument, (38) particularly as to the existence of a causal link between the position of the motor-vehicle industry in Saxony after German reunification and the division of Germany, that would have made it possible to distinguish this case from the earlier decisions. 127. In those circumstances the Court was fully entitled to consider that the contested decision formed part of a consistent line of decision-making practice and so could be supported by a summary statement of reasons. (39) 128. The appellants consider also that, since the German authorities and the Commission have taken different positions as to the interpretation of the derogation in Article 92(2)(c) of the Treaty and since the importance of that interpretation for the German authorities has been stressed several times, this argues, contrary to the view of the Court of First Instance, that the Commission had a duty to state its reasons specifically. 129. That argument is not convincing, however. 130. Failure to agree with a position taken does not in fact mean that the reasons for it cannot be understood. Therefore the mere existence of a difference of position - which is always to be found in an appeal - does not mean that the reasons for a decision had to be stated in a specific manner. 131. The appellants also submit that the wording used in the contested decision is too terse for its reasons to be understood. 132. It is enough to note that the Court of First Instance essentially took its lead from the context and, more particularly, from the existence of a constant line of decision-making practice which, as has been said, can contribute to the statement of reasons for a decision. 133. However, the appellants also dispute that the decisions to which the Court of First Instance referred in paragraphs 153 and 154 of the contested judgment are able to constitute a constant line of decision-making practice from which the reasons of the contested decision may be understood. They consider that that Court erred when, in paragraph 154 of the contested judgment, it accorded particular importance to the Mosel I decision and noted that neither the applicants nor the German authorities had brought any action against that earlier decision. 134. However, I do not share the appellants' view here. 135. It is difficult to understand their explanation that that decision did not adversely affect them - which would have explained their refraining from bringing an action - because, in the Mosel I decision, the Commission declared aid amounting to DEM 125.2 million to be incompatible with the common market. 136. Moreover, as a Member State the Federal Republic of Germany did not have to demonstrate a legal interest in bringing an action for annulment (40) and could thus seek annulment of the Mosel I decision solely on the ground that its legal basis was wrong. 137. Similarly, the appellants' argument regarding the fact that the Mosel I decision related to the refusal of certain aids for the renewal of plant and to cover losses, whereas the contested decision related to the refusal to authorise aid granted for new investment, does not seem relevant. 138. As the Commission has noted, rightly, in both cases the entity granting the aid, the recipient of the aid and the purpose and the place of use of the aid were practically identical. The Court of First Instance was therefore entitled to regard the Mosel I decision as contributing to the statement of reasons for the contested decision. 139. Furthermore, the argument that it was not possible to deduce the reasons for the contested decision from the constant line of decision-making practice cited by the Court of First Instance is contradicted by the Daimler-Benz and Tettau decisions. 140. As the Commission says, [b]y comparing these two decisions, where the Commission had applied [Article 92(2)(c) of the Treaty], with all the other decisions cited, where the Commission had expressly refused to apply that provision and which are all known to the appellants, anyone might see how strict were the terms on which the Commission held the conditions for applying the provision to be fulfilled and how it interpreted the concept of division of Germany. 141. I may add that German legal writers were in any event not unaware of the way in which the Commission applied Article 92(2)(c) of the Treaty. (41) 142. Lastly, I note that, in Germany v Commission, cited above, (42) the Court ruled that, in circumstances practically identical to those in this case, the reasons for the Commission's decision in question were stated sufficiently. 143. I consider that the appellants have not shown that the Court of First Instance infringed Article 190 of the Treaty, and I therefore propose that their second plea be rejected. C - Third plea in law, alleging infringement of Article 92(3)(b) of the Treaty 144. The appellants, supported by the German Government, complain that the Court of First Instance misinterpreted Article 92(3)(b) of the Treaty. 145. In paragraph 167 of the contested judgment, the Court said with respect to that provision: It follows from the context and general scheme of that provision that the disturbance in question must affect the whole of the economy of the Member State concerned, and not merely that of one of its regions or parts of its territory. This, moreover, is in conformity with the need to interpret strictly a derogating provision such as Article 92(3)(b) of the Treaty. ... 146. The applicants consider wrong in law the Court's interpretation that [Article 92(3)(b) of the Treaty] may apply only if the whole of the territory of a Member State is affected. (43) 147. It should first be noted that the Court did not refer to the whole of the territory of a Member State but to the whole of the economy of the Member State concerned. 148. Second, as the Commission judiciously observes, unlike subparagraphs (a) and (c) in Article 92(3) of the Treaty, subparagraph (b) refers not to areas but to serious disturbance in the economy of a Member State. 149. Thus, having regard also to the need for strict interpretation of a derogating provision, the Court of First Instance was entitled to find that the disturbance in question must affect the whole of the economy of the Member State concerned, and not merely that of one of its regions or parts of its territory. 150. The appellants maintain also that neither the wording nor the practical effect of Article 92(3)(b) of the Treaty justifies the Court's conclusion that the collapse of the old socialist economy of the German Democratic Republic during the reunification is not to be described as serious disturbance in the economy of the Federal Republic of Germany. 151. On this, the Court ruled that ... the question whether German reunification has caused a serious disturbance in the economy of the Federal Republic of Germany involves complex assessments of an economic and social nature ... which fall within the exercise of the wide discretion which the Commission enjoys ... (44) and that the applicants have not put forward any concrete evidence capable of establishing that the Commission made a manifest error of assessment in taking the view that the unfavourable repercussions of the reunification of Germany on the German economy, however real, did not in themselves constitute a ground for applying Article 92(3)(b) of the Treaty to an aid scheme. (45) 152. Undeniably, the assessment of the total impact of reunification on the economy of the Federal Republic of Germany does involve complex assessments of an economic and social nature. The German Government is therefore wrong in asserting that merely referring to the provision, in the context of a known factual situation, was sufficient to show that the conditions were fulfilled for applying Article 92(3)(b) of the Treaty. 153. Moreover, the appellants' argument is an invitation to reconsider the Court of First Instance's assessment of the facts, namely that there was no manifest error of assessment by the Commission. However, since the appellants do not offer any evidence of clear distortion of the facts by the Court, their argument must be rejected. 154. For all these reasons, I therefore propose that the appellants' third plea be rejected. D - Fourth plea in law, alleging infringement of Article 92(3) and Article 93 of the Treaty 155. In their fourth plea, the appellants, supported by the German Government, complain that the Court of First Instance infringed Article 92(3) and Article 93 of the Treaty in ruling as follows: 203 Contrary to what the applicants maintain, the aid measures in dispute cannot be regarded as falling within a regional aid programme already approved by the Commission and thus exempt from the duty of prior notification. 204 By referring, in the Nineteenth Outline Plan adopted pursuant to the Joint Task Law, [(46)] to a number of specific sectors in which each of the projects to be supported remained subject to the need for prior authorisation from the Commission (see paragraph 7 above), Germany acknowledged that approval of the regional aid envisaged by that outline plan did not extend to the sectors in question and, in particular, the motor-vehicle industry, to the extent that the cost of a support operation exceeded 12 million ecus. 205 That is confirmed, in particular, by the Commission's letter of 2 October 1990 approving the regional aid scheme laid down for 1991 by the Nineteenth Outline Plan (see paragraph 7 above) and by its letter of 5 December 1990 approving the application of the Joint Task Law to the new Länder (see paragraph 11 above), in which the Commission expressly drew the attention of the German Government to the need to take account, when implementing the measures contemplated, of the Community framework existing in certain sectors of industry; by its letters of 14 December 1990 and 14 March 1991, insisting that the aid for Volkswagen's new investments could not be implemented without having first been notified to the Commission and having received its approval (see paragraph 18 above); and by the fact that each of the 1991 [decisions] states that it is subject to the authorisation of the Commission. The applicants are wrong in arguing that such a reference is devoid of purpose having regard to the authorisation already obtained by virtue of the approval of the Nineteenth Outline Plan; that approval does not extend to the motor-vehicle industry, as has just been pointed out in paragraph 204 above. The applicants are also incorrect in arguing that the production of the letters referred to above, in an annex to the rejoinder, was out of time and inadmissible. In the first place, those letters are cited both in Point II of the [contested decision] and in the decision to initiate the investigation procedure. Moreover, they were produced in response to an assertion made for the first time in the reply. 206 In the light of the factors described above, the fact that application of the Community framework [(47)] was suspended between January and April 1991, even if established, cannot have the legal consequence that the aid to the motor-vehicle industry is to be regarded as covered by the approval of the Nineteenth Outline Plan. On the contrary, if that fact were established, it would have to be held that Article 93(3) of the Treaty remained fully applicable to the aid in question. 207 It follows from the above that, in any event, the aid in dispute was subject to the duty of prior notification to the Commission, and that it could not be implemented before the procedure had led to a final decision. 208 By contrast, the question whether or not the Community framework had binding force vis-à-vis Germany in March 1991 is of no relevance for the purposes of these proceedings. 209 In that respect, it should be emphasised that, although the rules of the Community framework, as appropriate measures proposed by the Commission to the Member States on the basis of Article 93(1) of the Treaty, are entirely devoid of binding force and bind Member States only if the latter have consented to them (Case C-292/95 Spain v Commission, paragraphs 30 to 33), there is nothing to prevent the Commission from examining the aid which must be notified to it in the light of those rules when exercising the wide discretion which it enjoys for the purposes of applying Articles 92 and 93 of the Treaty. 156. According to the appellants, in holding that the aid granted to the undertakings of the Volkswagen group was subject to a duty of individual notification and that it could have been subjected to detailed control by the Commission under Article 92 of the Treaty, the Court of First Instance infringed Articles 92 and 93 of the Treaty. They say that this statement is wrong in law because, contrary to the Court's incorrect view, the aid is part of an approved aid programme. 157. In support of their view, the appellants argue as follows. 158. The aid in dispute is part of the system of regional aid planned for 1991 in the Nineteenth Outline Plan adopted in accordance with the Joint Task Law, and that system was approved by the Commission by a letter of 2 October 1990 to the German Government. In letters of 5 December 1990 and 11 April 1991, to the German Government, the Commission approved the application of the Joint Task Law to the new Länder. Similarly, by a letter of 9 January 1991, it approved the extension of the existing systems of regional aid to the new Länder. 159. The appellants acknowledge that these letters from the Commission state that in implementing the programmes, in so far as they concern aid, the German authorities are to take account of the provisions of Community law and of the framework conditions ... in force in certain sectors of industry and thus also of the provisions of the Community Framework. Among other things, this provides in the first paragraph of point 2.2, that [a]ll aid measures to be granted by public authorities within the scope of an approved aid scheme to (an) undertaking(s) operating in the motor vehicle sector as defined above, where the cost of the project to be aided exceeds ECU 12 million are subject to prior notification on the basis of Article 93(3) of the EEC Treaty. ... 160. However, they maintain that, during the period from January to April 1991, the Community Framework was not a provision of Community law in force. 161. Indeed, the Community Framework was applicable for a period of two years up to 31 December 1990. But its extension was not accepted by the German Government until April 1991. Therefore, since it is an appropriate measure within the meaning of Article 93(1) of the Treaty, the Community Framework as extended can, according to the appellants, be regarded as applicable only from April 1991. 162. According to the appellants, the aid in dispute was granted on 22 March 1991 and thus precisely during the period that the Community Framework did not apply. It follows that the aid in dispute must be regarded as part of an aid scheme subject to general authorisation from the Commission. That aid must, therefore, be described as existing aid. 163. This has two consequences, according to the appellants. First (in formal terms) there was no need to notify the aid in dispute. Second (in material terms) the appellants consider that, since this was existing aid, examination by the Commission was limited to whether the individual aid was covered by the general scheme and whether the conditions laid down in the decision approving the general scheme had been met. 164. However, the appellants' argument fails to convince. 165. That argument is based entirely on the idea that Commission approval of regional aid schemes under the Nineteenth Outline Plan is limited only to the extent that the Community Framework applies. If the latter does not apply, then the approval is general and thus covers all aid under that scheme, including the aid at issue. 166. But that is not the view of the Court of First Instance. In paragraph 206 of the contested judgment, it said that, in the light of the factors described in paragraphs 204 and 205, ... the fact that application of the Community framework was suspended between January and April 1991, even if established, cannot have the legal consequence that the aid to the motor-vehicle industry is to be regarded as covered by the approval of the Nineteenth Outline Plan .... 167. In other words, the Court reached the conclusion that, whether the Framework applies or not, aid to the motor vehicle sector is, in any event, not covered by the approval for the regional aid scheme provided in the Nineteenth Outline Plan. 168. That conclusion is based on the Court's assessment of the documents to which it refers in paragraphs 204 and 205 of the contested judgment. 169. This is an assessment of fact by the Court of First Instance, and it cannot be called into question in this appeal unless those facts have been distorted. 170. But I believe that we cannot speak of any such distortion here. 171. The correspondence, cited in paragraph 205 of the contested judgment, by which the Commission drew the German Government's attention, first, to the need to take account, when implementing the measures contemplated, of the Community framework existing in certain sectors of industry (including the motor vehicle sector) and, second, to the fact that the aid for Volkswagen's new investments could not be implemented without having first been notified to the Commission and having received its approval, confirms that the Commission's clear and plain intention as regards the regional aid scheme provided for in the Nineteenth Outline Plan was to give an approval which did not cover certain sectors of industry, one of those being the motor vehicle sector. 172. The Commission's approval of the regional aid scheme provided for in the Nineteenth Outline Plan is therefore not an approval with a variable scope - meaning that it is limited if the Community Framework applies and general if not - but an approval with a scope that in any event excludes aid granted, in particular, in the motor vehicle sector. 173. Nor did the German Government construe it otherwise, as is shown by the text of the Nineteenth Outline Plan, which (at Part I, point 9.3, p. 43) indicates that the Commission has taken decisions which prohibit the implementation of State aid granted in certain sectors even if it were granted in the context of approved programmes (regional aid for example), or which make its implementation subject to the need for prior authorisation of each of the projects which it is intended to benefit ... Such rules exist in the following areas: (a) ... - the motor-vehicle industry, in so far as the cost of an operation which it is intended to benefit exceeds 12 million ecus. (48) 174. Since the approval did not cover aid in the motor vehicle sector, the aid at issue should have been notified, either under the provisions of the Community Framework or, should that not apply, as the appellants maintain, under Article 93(3) of the Treaty, as the Court of First Instance rightly held in paragraph 206 of the contested judgment. 175. That Court was therefore entitled to rule, in paragraph 207 of the contested judgment, that the aid at issue was subject to the duty of prior notification to the Commission, and that it could not be implemented before the procedure had led to a final decision. 176. My examination could stop here. 177. The arguments used by the appellants as part of the fourth plea in law are essentially intended to show that the Community Framework did not apply between January and April 1991. 178. Yet, as we have just seen, that issue is not relevant to the solution of the present dispute. 179. That being said, the argument used by the appellants to show that the Community Framework did not apply during that period is not convincing. 180. Their argument is that the German Government only accepted the extension of the Community Framework in April 1991. Since the Community Framework was an appropriate measure within the meaning of Article 93(1) of the Treaty, it could not, in the absence of acceptance by the Member State, apply before that date. 181. But, in paragraph 209 of the contested judgment, the Court of First Instance rightly ruled that ... there is nothing to prevent the Commission from examining the aid which must be notified to it in the light of [the rules of the Community Framework] when exercising the wide discretion which it enjoys for the purposes of applying Articles 92 and 93 of the Treaty. 182. As the Court of Justice ruled in Case C-288/96, (49) it should be borne in mind that the Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as the Guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and they do not depart from the rules of the Treaty. 183. The Community Framework may thus be applied not only as an appropriate measure but also through the Commission's exercise of its discretion under Articles 92 and 93 of the Treaty. (50) 184. In this connection, we should refer to Commission Decision 90/381/EEC of 21 February 1990 amending German aid schemes for the motor vehicle industry, (51) which was adopted following the German Government's decision not to apply the Community Framework (in the original version). (52) Article 1 of the Decision provides: 1. From 1 May 1990, the Federal Republic of Germany shall notify to the Commission pursuant to Article 93(3) of the EEC Treaty all aid measures to be granted for projects costing more than ECU 12 million under the aid schemes set out in the Annex hereto to undertakings operating in the motor vehicle sector as defined in sub-section 2.1 of the Community framework for State aid to the motor vehicle industry. Such notification shall be effected in conformity with the requirements laid down in sub-sections 2.2 and 2.3. The Federal Republic of Germany shall, moreover, provide annual reports as required by the framework. 2. Further to the list of aid schemes set out in the Annex to this Decision (which list is not exhaustive), the Federal Republic of Germany shall also comply with the obligations of Article 1(1) with regard to all other aid schemes capable of benefiting the motor vehicle industry. 3. Aid to undertakings in the motor vehicle industry operating in Berlin which are granted under the Berlin Förderungsgesetz are excluded from the prior notification obligation provided for in the framework but shall be included in the annual reports required by that framework. 185. As the Commission correctly observes, the validity of that decision was unlimited and, unlike the validity of the Community Framework, was thus not limited to 31 December 1990. 186. However, the appellants reply that the fact that the Community Framework was made binding on the Federal Republic of Germany from 1 May 1990, following a procedure initiated under Article 93(2) of the Treaty, cannot make it binding with no time-limit beyond the expiry date originally provided for it. 187. According to the appellants, it would be contrary to the principle of equal treatment of Member States if the Community Framework could continue to apply only in Germany when it had expired in the other Member States on 31 December 1990. 188. However, this argument, alleging infringement of the principle of equal treatment, cannot be accepted. 189. As regards the duty to notify aid in the motor vehicle sector, the Federal Republic of Germany, to which the rules of the Community Framework applied because of Decision 90/381, was from January to April 1991 in the same position as Member State X where - by definition - the Community Framework no longer applied in the absence of that State's consent to extension. 190. Thus, in both of these cases, aid in excess of ECU 12 million had to be notified, whether on the basis of Decision 90/381 (the Federal Republic of Germany) or directly, on the basis of Article 93(3) of the Treaty (Member State X). All things considered, it was Member State X that was in an even less favourable position, because it had to notify even aid that did not exceed ECU 12 million. 191. It follows therefore that the Court of First Instance observed very acutely, in paragraph 208 of the contested judgment, that the question whether or not the Community framework had binding force vis-à-vis Germany in March 1991 was of no relevance for the present proceedings. 192. The Commission also refers to the considerations of the Court of First Instance, in paragraphs 210 to 219 of the contested judgment, where that Court rejects the appellants' argument that the investigation, in 1996, of the compatibility of the disputed aid with the common market could be based only on assessment criteria which existed in 1991 (investigation ex ante). 193. According to the Commission, the appellants' arguments on the application of the Community Framework between January and April 1991 lose their point in the light of these considerations by the Court of First Instance. It considers that the applicability of the Community Framework in March 1991 was irrelevant here, because the Commission could and had to take account of those circumstances of fact and law of which it had knowledge at the time that the contested decision was adopted, on 26 June 1996. 194. However, that argument by the Commission cannot be accepted. 195. As the appellants rightly point out, the question whether there was or not a duty to notify aid must be considered at the date of the decision granting that aid. 196. By contrast, the question of which circumstances of fact and law the Commission must take into account when adopting its decision is another matter entirely. Furthermore, that question arises only if the question whether aid must be notified was answered yes. The answer to that first question, therefore, cannot determine the answer to be given to the latter. 197. Furthermore, we see both from the heading which precedes paragraph 192 and from paragraph 219 of the contested judgment that the Court of First Instance regarded the appellants' arguments concerning the need for an investigation ex ante and the inapplicability of the Community framework as two separate arguments. 198. It follows from the above considerations that, in their fourth plea, the appellants have not in my opinion shown that the Court of First Instance erred in law. 199. I therefore propose that that plea be rejected. E - Fifth plea in law, adduced by Volkswagen and VW Sachsen, on the partial discontinuance accepted by the Court of First Instance 200. Volkswagen and VW Sachsen object to paragraph 1 of the operative part of the contested judgment taken together with paragraphs 309 and 65 of the judgment. 201. In paragraph 309 of the contested judgment, the Court stated that [u]nder Article 87(2) of the Rules of Procedure, an unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under Article 87(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party's pleadings. 202. In point 1 of the operative part of the contested judgment, the Court of First Instance: 1. Takes formal notice that the applicants discontinue their action in Case T-143/96 in so far as it seeks the annulment of the first indent of Article 2 of Commission Decision 96/666/EC of 26 June 1996 concerning aid granted by Germany to the Volkswagen Group for works in Mosel and Chemnitz. 203. In paragraph 65 of the contested judgment, the Court had declared: At the hearing on 30 June 1999, the applicants in Case T-143/96 asked the Court to hold that the action had become devoid of subject-matter in so far as it sought the annulment of the first indent of Article 2 of the [contested decision], declaring investment aid in the form of special depreciation on investment incompatible with the common market, and to apply Article 87(6) of the Rules of Procedure in that respect. The Court also took formal notice of the fact that, in the Commission's submission, that request must be interpreted as a partial discontinuance and entail the application of Article 87(5) of the Rules of Procedure. 204. Volkswagen and VW Sachsen complain that, without stating any other grounds, the Court accepted the Commission's submission. 205. They point out that they had made clear at the hearing that, following a recent modification in German tax legislation, they would no longer be allowed to effect special depreciation retrospectively, even if their case succeeded (and the Commission issued authorisation). Since they could no longer benefit from a judgment giving them entitlement to special depreciation, they proposed, as they state it, that the proceedings should be terminated, while asking that an order for costs should be made in accordance with Article 87(6) of the Rules of Procedure of the Court of First Instance. 206. The appellants emphasise that they consider it important to establish that they did not discontinue their action in respect of special depreciation. Therefore, they say, costs cannot be ordered under Article 87(5) of the Rules of Procedure. 207. According to the Commission, the appellants' submission is incorrect. An action becomes devoid of subject-matter for the purposes of Article 87(6) of the Rules of Procedure only if the applicant's complaint has been remedied out of court, so that there is no longer any need for a decision and the bringing of an action. In the present case, the action would have been devoid of subject-matter only if the dispute at issue between the Commission and the applicants had ceased to exist after the case had been brought, for example because of a partial revocation of the contested decision. But that did not happen. 208. For my part, I consider that the request from Volkswagen and VW Sachsen to declare the action partially devoid of subject-matter was unfounded. The subject-matter of the proceedings was the contested decision and, at the time that the contested judgment was given, the decision was fully applicable. At that time, therefore, the subject-matter of the action remained intact, and it is not correct to state that it was partially devoid of subject-matter. 209. On the other hand, the mere fact that one no longer has an interest in the decision being partially annulled, which was the position for Volkswagen and VW Sachsen, would rather be a reason for partial discontinuance. However, I question whether the Court of First Instance is able to take formal note of a partial discontinuance where the party concerned has not made that intention known unequivocally, which appears to me to be the case here. 210. None the less, I consider that the plea raised by Volkswagen and VW Sachsen must still be rejected. The two observations following need to be made. 211. Firstly, had the Court of First Instance accepted the argument that there was no need to adjudicate, the costs would none the less have been at the Court's discretion, under Article 87(6) of the Rules of Procedure. The interest of the appellants in raising that point is therefore not clear. 212. Secondly, and chiefly, we are entitled to consider that a plea alleging infringement of Article 87(5) or (6) of the Rules of Procedure is tantamount to a plea calling into question the burden of costs as resolved by the Court of First Instance. 213. Any such plea is inadmissible here. 214. By virtue of the second paragraph of Article 51 of the EC Statute of the Court of Justice, [n]o appeal shall lie regarding only the amount of the costs or the party ordered to pay them. 215. In addition, the Court has consistently held that ... where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the Court of First Instance on costs must be rejected as inadmissible by virtue of the second paragraph of Article 51 of the EC Statute of the Court of Justice .... (53) III - Conclusion 216. Having regard to the foregoing considerations, I propose the Court should: - dismiss the appeals; - order Freistaat Sachsen, Volkswagen AG and Volkswagen Sachsen GmbH jointly and severally to pay the costs; - order the Federal Republic of Germany to bear its own costs. 1: - Original language: French. 2: - T-132/96 and T-143/96, [1999] ECR II-3663. 3: - OJ 1996 L 308, p. 46. 4: - The parties use the new numbering of the Treaty in their pleadings but I feel that, since we are considering an appeal, we should use the same numbering as was used by the Court of First Instance. 5: - Commission Decision 92/465/EEC of 14 April 1992 concerning aid granted by the Land of Berlin to Daimler-Benz AG Germany (C 3/91 ex NN 5/91) (OJ 1992 L 263, p. 15). 6: - Commission Decision of 13 April 1994 on aid to producers of glass containers and porcelain, Tettau (OJ 1994 C 178, p. 24). 7: - Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraphs 46 to 56. 8: - Emphasis added. 9: - Emphasis added. 10: - Case C-432/92 [1994] ECR I-3087. 11: - Anastasiou and Others, paragraph 37. 12: - OJ 1988 C 236, p. 4. 13: - OJ 1998 C 14, p. 180. 14: - Emphasis added. 15: - Point 15 of the reply in that case. 16: - Ibid. 17: - Ibid. Emphasis is that of the German Government. 18: - Emphasis added. 19: - Emphasis added. 20: - Point 25 of the application in Case C-301/96. 21: - Bulletin of the European Economic Community No 2-1965, p. 33. 22: - Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19. 23: - Article 64(4) of the Rules of Procedure of the Court of First Instance. 24: - Emphasis added. 25: - See, for example, Duroselle, J-B., Histoire diplomatique de 1919 à nos jours, Éditions Dalloz, 1957, in particular, pp. 556-557. 26: - Emphasis added. 27: - Contested judgment, paragraph 134. 28: - Erdmenger, J., in Groeben, Thiesing and Ehlermann, Kommentar zum EU-/EG-Vertrag, Nomos Verlagsgesellschaft, 5th edition, 1999, on Article 82. 29: - See Council Regulation (EEC) No 3572/90 of 4 December 1990 amending, as a result of German unification, certain Directives, Decisions and Regulations relating to transport by road, rail and inland waterway (OJ 1990 L 353, p. 12). 30: - See Joined Cases C-280/99 P to C-282/99 P Moccia Irma and Others v Commission [2001] ECR I-4717, paragraph 78. See also Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 29, Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 66, and Case C-267/97 P VBA v Florimex and Others [2000] ECR I-2061, paragraph 139. 31: - Commission Decision 94/1068/EC of 27 July 1994 concerning aid granted to the Volkswagen Group for investments in the new German Länder (OJ 1994 L 385, p. 1). 32: - Case C-166/95 P [1997] ECR I-983. 33: - Emphasis added. 34: - See the Opinion of Advocate General Van Gerven in Case C-145/90 P Costacurta v Commission [1991] ECR I-5449, point 3. See also Wathelet, M. and Van Raepenbusch, S., Le contrôle sur pourvoi de la Cour de justice des Communautés européennes, dix ans après la création du Tribunal de première instance, in Rodriguez Iglesias, G.C., Due, O., Schintgen, R., Elsen, C., (ed.), Mélanges en hommage à Fernand Schockweiler, Nomos Verlagsgesellschaft, 1999, p. 605, 612. 35: - See, in particular, Case C-278/95 P Siemens v Commission [1997] ECR I-2507, paragraph 17; Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63; Case C-289/97 Eridania [2000] ECR I-5409, paragraph 41; and Germany v Commission, paragraph 97. 36: - Case 294/81 [1983] ECR 911. 37: - Control Data Belgium v Commission, paragraph 12. 38: - Contested judgment, paragraph 155. 39: - Papiers peints v Commission, paragraph 31, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, and Germany v Commission, paragraph 105. 40: - Case 41/83 Italy v Commission [1985] ECR 873, paragraph 30. 41: - See, for example, Schütterle, P., Die Rechtsgrundlage für Beihilfen zur Überwindung der wirtschaftlichen Folgen der Teilung Deutschlands, EuZW, 1994, p. 715; von Wallenberg, G., in: Grabitz and Hilf, Das Recht der Europäischen Union. Kommentar, Verlag C.H. Beck, Artikel 92 EGV, paragraph 40; Kruse, E., Ist die Teilungsklausel als Rechtsgrundlage für Beihilfen zum Ausgleich teilungsbedingter Nachteile obsolet?, EuZW, 1998, p. 228; Mederer, W., in: Groeben, Thiesing and Ehlermann, Kommentar zum EU-/EG-Vertrag, Nomos Verlagsgesellschaft, 5th Edition, 1999, Artikel 92, paragraphs 60 to 64. 42: - Paragraphs 104 to 108. 43: - Emphasis by Volkswagen and VW Sachsen. 44: - Contested judgment, paragraph 169. 45: - Contested judgment, paragraph 170. 46: - German Law of 6 October 1969 on the Joint Task of Improving the regional economic structure. 47: - Community framework on State aid to the motor vehicle industry, which was the subject of notice 89/C 123/03 (OJ 1989 C 123, p. 3). 48: - See the contested judgment, paragraph 7. 49: - Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 62. 50: - See also my Opinion of 12 March 2002 in Case C-242/00 Germany v Commission, pending before the Court, points 73 to 75. 51: - OJ 1990 L 188, p. 55. 52: - See the contested judgment, paragraph 6. 53: - Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraph 31. See also Case C-396/93 P Henrichs v Commission [1995] ECR I-2611, paragraph 66, the order of 6 March 1997 in Case C-303/96 P Bernardi v Parliament [1997] ECR I-1239, paragraph 49, and the order of 13 December 2000 in Case C-44/00 P Sodima v Commission [2000] ECR I-11231, paragraph 93.