61991CC0072_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The difficulties experienced by European merchant shipping, which are apparent from the question submitted to the Court for a preliminary ruling by two orders of the Arbeitsgericht Bremen, have led to the Court being called upon to define the concept of State aid within the meaning of Article 92(1) of the EEC Treaty. The importance of that question in terms of its practical effects is equalled only by the difficulty involved in defining the ambit of that provision.
2. At the hearing, some of the interveners referred to the substantial fall in the number of registrations under the flags of the Member States in favour of the flags of non-member countries. The well-known practice of flying a "flag of convenience" is also referred to in Case C-286/90 Poulsen and Dina Navigation, in which the oral procedure took place on 21 January 1992.
3. This case reveals conflicting imperatives. Registration under the flags of non-member countries of vessels belonging to Community shipowners leads, on the one hand, to the unrestricted employment by the latter of seafarers who are nationals of those countries thereby reducing their wage bills and, on the other, to a loss of revenue for the Member States. Hence the employment of Community seafarers is in decline. (1) Furthermore, the possibility cannot be excluded that a reduction in the Community fleet may have a significant impact on the effectiveness of the international policy on the limitation of catches in the fisheries sector, in which the Community is involved, since there are several non-member countries which are not signatories of the international agreements concluded to that end. Finally, the co-existence on the same vessel of seafarers earning widely differing salaries when at times they are carrying out the same duties is difficult to reconcile with the purpose, or at any rate the spirit, of the social policy pursued in the Community, even if the seafarers who are nationals of a non-member country do not reside in a Member State.
4. Whatever the social and political background may be, this case raises some awkward legal problems which I shall consider after referring to the main facts of the case.
5. Sloman Neptun Schiffahrts AG (hereinafter "Sloman Neptun"), a shipping company whose registered office is in Bremen, registered a vessel in the German international shipping register. (2) With a view to engaging a Filipino radio officer (Case C-72/91), and five seafarers of the same nationality (Case C-73/91), it sought the agreement of its Seebetriebstrat (Seafarers' Committee). The latter refused to give its consent on the ground that the rate of pay offered to those seafarers is 20% lower than that paid to German seafarers and that the incorporation of workers engaged "at low home country rates" disrupts the peaceful working climate.
6. In the proceedings instituted before the Arbeitsgericht Bremen, the Seebetriebstrat submits that the arrangements resulting from registration in the German international register constitute State aid within the meaning of Article 92(1) of the Treaty. It refers essentially to Paragraph 21(4) of the Flaggenrechtsgesetz (Law relating to the right to fly the flag), as amended by Article 1(2) of the Federal Law of 23 March 1989, (3) which provides that "the contracts of employment of crew members of a merchant ship registered in the international shipping register who have no permanent abode or residence in Germany shall not be governed by German law merely on account of the fact that the ship is flying the Federal German flag".
7. The national court has accordingly submitted a question for a preliminary ruling in order to enable it to determine the compatibility with Articles 92 and 117 of the EEC Treaty of the German Law on the introduction of an additional shipping register for ships flying the Federal German flag in international trade, inasmuch as that Law makes it possible not to apply German collective agreements to seafarers who are nationals of non-member countries and do not reside in Germany, and accordingly to subject them to less favourable working conditions and rates of pay. (4)
8. Let us at once turn to Article 117. According to the observations submitted at the hearing by the Seebetriebstrat' s representative, Article 117 imposes on the Member States a negative obligation not to call in question existing social protection, which is sufficiently precise and unconditional to be capable of being relied upon by an individual before a national court. In support of that view, reference is made to the Court' s judgment in Defrenne v Sabena. (5) Emphasis seems to be laid especially on the adverb "essentially" in paragraph 19 of that judgment, which starts with these words:
"In contrast to the provisions of Articles 117 and 118, which are essentially in the nature of a programme ...". (6)
9. Let me make it quite clear that such reasoning a contrario is a risky business. In the Opinion which he delivered in that case, moreover, Advocate General Capotorti expressed his views on the lack of direct effect of both Article 117 and Article 118 as follows:
"One first point with regard to those two provisions is that neither of them contains a principle in the sense of a rule of conduct. In my opinion Article 117 rather constitutes an objective; this is confirmed by the wording of the second paragraph of that article where the purport of the first paragraph is summarized in the words 'such a development' . It can also not be said to be a directly applicable principle as the provision expressly points to the need for Community and national procedures in order to achieve the objective set out: both Article 117 and Article 118 seem clearly based on an idea of progressive achievement and, as distinct from Article 119, do not lay down any period within which the objective must be achieved". (7)
10. There is nothing, moreover, in the Court' s case law which permits any kind of direct effect to be inferred from Article 117. Admittedly, a negative obligation addressed to a Member State may, where the conduct so prohibited is sufficiently precise, be relied upon directly by an individual before a national court. (8) However, the obligation not to aggravate the prevailing social situation would seem to be too imprecise on account of its general nature to be regarded as having direct effect. What approach are we to take when Article 117 has to be applied to a specific legislative measure amending the social system of a Member State? Does a fall in the social security costs of undertakings, thereby favouring the fight against unemployment, together with a reduction in certain social benefits, constitute a measure contrary to that negative obligation which the Seebetriebstrat sees Article 117 as imposing? Far be it from me to say so.
11. In my view, therefore, it is on the basis of Article 92(1) alone that the contested legislation must be examined.
12. The first difficulty in that regard seems to me to lie in the financing of the aid. As a general rule, funds which the undertaking or sector of industry in receipt of the aid is granted or is released from spending either come from or are intended for the State, as the case may be. Admittedly, in this case, the German Government has waived income tax on account of the very low rates of pay of Filipino seafarers. Even though those seafarers do not reside in the Federal Republic of Germany, they are nevertheless liable in principle to pay income tax since they are in receipt of income earned in that State. Similarly, the social security institutions receive smaller contributions than would be the case if those seafarers were paid at the rate provided for by German collective agreements.
13. However, we cannot go straight to the heart of the matter if we dwell on secondary considerations. The specific arrangements at issue are financed essentially by the workers themselves who accept a rate of pay 20% lower than that payable to German seafarers. Any loss of revenue by the Treasury and the German social security institutions is merely a consequence of that situation. Such losses could, if necessary, be justified by "the nature or general scheme of this system", (9) inasmuch as it is standard practice for taxes and social contributions to be calculated on the basis of workers' pay.
14. If this case were to be assessed by reference solely to the loss of "public" resources, it would lead to the surprising result that German employers would be required to pay social contributions disproportionate to remuneration while Filipino workers would be required to pay income tax at a rate that would undoubtedly be out of all proportion to the amount of their pay.
15. According to the Seebetriebstrat, the "aid" in question does not only concern the social security costs of undertakings but lies, in view of its nature, in the rates of pay offered to the seafarers concerned, which are much lower than the minimum rate provided for by German collective agreements.
16. In this case, the "aid" is therefore financed essentially out of private funds.
17. Admittedly, the Court has frequently held that
"Article 92 covers all aid granted by a Member State or through State resources and there is no necessity to draw any distinction according to whether the aid is granted directly by the State or by public or by private bodies established or appointed by it to administer the aid". (10)
18. However, the Court has never made it clear whether a measure designed to lessen the costs borne by certain undertakings may be classified as aid, in the absence of any financial contribution by the State and of any public or private body established or appointed to administer the aid.
19. In the Court' s judgment on the Italian textile industry, (11) where the relief on the social security costs normally borne by employers in the textile sector was paid for by the social security institutions, the Court considered that
"as the funds in question are financed through compulsory contributions imposed by State legislation and as ... they are managed and apportioned in accordance with the provisions of that legislation, they must be regarded as State resources within the meaning of Article 92, even if they are administered by institutions distinct from the public authorities". (12)
20. Similarly, in Steinike und Weinlig, (13) a fund for sales promotion in the German agricultural and food industry and in forestry (the Absatzfoerderungsfonds der deutschen Land-, Forst- und Ernaehrungswirtschaft), set up by Federal law, had as its purpose to promote, by means of a body financed and controlled by it called the "Centrale Marketing-Gesellschaft der deutschen Agrarwirtschaft", the sale and use of German products. (14)
21. In that judgment the Court held that
"in applying Article 92 regard must primarily be had to the effects of the aid on the undertakings or producers favoured and not the status of the institutions entrusted with the distribution and administration of the aid". (15)
22. In its judgment in Commission v France, (16) the Caisse Nationale de Crédit Agricole (National Agricultural Credit Fund) was responsible for financing a "solidarity grant" through its operating surpluses for the benefit of the poorest farmers. The Court held that
"Article 92 of the Treaty covers aid which, like the solidarity grant in question, was decided and financed by a public body and the implementation of which is subject to the approval of the public authorities, the detailed rules for the grant of which correspond to those for ordinary State aid ...". (17)
23. The Court' s judgment in France v Commission (18) was concerned with the Fonds Industriel de Modernisation (FIM), established by the French Government, which contributed to the financing of undertakings by means of loans at rates below the market rate. That fund was financed out of "comptes de développement industriel" (industrial development accounts, known as "Codevi") which were private short-term deposit accounts exempt from the payment of income tax. The Court considered that, according to the preamble to the Commission decision, which was not contested by the French Government,
"the combination of the tax exemption for Codevi and the use of the money deposited on such accounts to finance FIM loans amounts to granting an interest subsidy to the borrowing undertakings to the detriment of the State' s tax revenue". (19)
24. In Greece v Commission (20) the Court pointed out that the repayment of interest to export undertakings had been introduced by Greece "through the Bank of Greece which, for that purpose, acted under direct State control" and that "the banks reimburse the interest or send documents evidencing the purchase of foreign currency to the Bank of Greece which then makes the payment", (21) and concluded that this constituted aid within the meaning of Article 92(1).
25. Although in other judgments the Court seems to lay emphasis essentially on the existence of conduct attributable to the State, the fact remains that, even in those cases, there was an intermediate body between the "taxpayers" ° that is to say, the workers, consumers or traders as a whole who ultimately bear the burden of financing the aid ° and the recipients.
26. Hence in Commission v Italy, (22) concerning storage costs for sugar, beet producers were charged a levy on the aid which was intended for them under a Community regulation in order to finance a special fund to permit the partial reimbursement of storage costs to the sugar manufacturers concerned. The levy and the special fund were introduced under inter-trade agreements between the organizations representing the sugar industry and those representing beet growers. The Court stated that
"the intervention of the Italian authorities was not restricted to authorizing the fund to act as the agent of the parties to the inter-trade agreements. In fact the agreements contain various features which are foreign to an agreement voluntarily entered into by private undertakings. Thus it was the Minister for Agriculture who declared that the agreement had been concluded and that in the circumstances in which it was concluded it was binding erga omnes; for the agreement relating to the 1977/78 year that declaration is preceded by a preamble which, the Minister states, forms an integral part of the agreement; the agreements enter into force at the time of the adoption of the implementing measures by the Price Committee; (23) and the agreements set up a 'joint committee' presided over by a representative of the Minister which is to promote the implementation of the provisions of the agreement and to lay down certain implementing rules", (24)
from which it followed that
"the conclusion and the implementation of the inter-trade agreements, the operations of the fund and the measures adopted by the Price Committee and by the Minister for Agriculture are connected by links so close that they are inseparable. It must accordingly be declared that the inter-trade agreements form part of a body of measures which are intended to provide support for the Italian sugar industry and that the Italian Government is responsible for them". (25)
27. In Van der Kooy v Commission, (26) concerning preferential tariffs for natural gas charged to Netherlands glasshouse growers, Gasunie being a company incorporated under private law, the Court pointed out that
"first of all, the shares in Gasunie are so distributed that the Netherlands State directly or indirectly holds 50% of the shares and appoints half the members of the supervisory board ° a body whose powers include that of determining the tariffs to be applied. Secondly, the Minister for Economic Affairs is empowered to approve the tariffs applied by Gasunie, with the result that, regardless of how that power may be exercised, the Netherlands Government can block any tariff which does not suit it. Lastly, Gasunie and the Landbouwschap (27) have on two occasions given effect to the Commission' s representations to the Netherlands Government seeking an amendment of the horticultural tariff, first following Commission Decision 83/73, which was later repealed, and then again following Decision 85/215, which is challenged in these proceedings", (28)
and decided that
"considered as a whole, these factors demonstrate that Gasunie in no way enjoys full autonomy in the fixing of gas tariffs but acts under the control and on the instructions of the public authorities. It is thus clear that Gasunie could not fix the tariff without taking account of the requirements of the public authorities", (29)
and that
"it may therefore be concluded that the fixing of the contested tariff is the result of action by the Netherlands State and thus falls within the meaning of the phrase 'aid granted by a Member State' under Article 92 of the Treaty". (30)
28. The distinguishing feature of the present case is that there is no intermediary, established or appointed by the State, between those who finance the "aid", namely the seafarers who are nationals of non-member countries, and the recipients, in this case the German shipowners.
29. In Norddeutsches Vieh- und Fleischkontor v BALM, (31) Advocate General VerLoren van Themaat took the view that
"it is quite possible to argue that the independent grant by Member States of pecuniary advantages which are not paid for by the Member States is caught by Article 92. Advantages which come to mind here are ... reduced rates which Member States might require private electricity companies or haulage contractors, for example, to grant (without reimbursement) to certain undertakings or in respect of certain products". (32)
30. Mention should be made, however, of the Court' s judgment in Van Tiggele, (33) concerning a system of minimum prices for gin, in which the Court considered that
"whatever definition must be placed upon the concept of an 'aid' ... it is clear from the wording thereof (34) that a measure characterized by the fixing of minimum retail prices with the objective of favouring distributors of a product at the exclusive expense of consumers cannot constitute an aid within the meaning of Article 92", (35)
and came to the conclusion that
"the advantages which such an intervention in the formation of prices entails for the distributors of the product are not granted, directly or indirectly, through State resources within the meaning of Article 92". (36)
31. The same question arising in connection with the concept of subsidies, which is set out in the Code on subsidies and countervailing duties resulting from the Agreement on the interpretation and the application of Articles VI, XVI and XXIII of GATT, (37) has not so far received a clear answer. According to G. Korlick, R. Quick and E. Vermulst (38)
"in 1960 a Working Party on Subsidies stated:
' The GATT does not concern itself with such action (subsidies) by private persons acting independently of their governments except in so far as it allows importing countries to take actions under other provisions of the Agreement.' (39)
Such actions under other provisions of the Agreement could be countervailing duties according to Article VI. A Working Party on anti-dumping and countervailing duties stated shortly thereafter:
' A large majority of the experts considered that it (the term subsidy) covered only subsidies granted by governments and semi-governmental bodies. Three experts considered that the word should be interpreted in a wider sense and felt that it covered all subsidies, whatever their character and whatever their origin, including also subsidies granted by private bodies' ." (40)
32. In their work entitled "Anti-Dumping and Anti-Subsidy Law", (41) J.F. Beseler and A.N. Williams make the following points:
"The problem is important. If a subsidy were to be equated with all forms of government intervention in the economy, this would lead, in the last resort, to the potential countervailability of any kind of State intervention, whether financial or merely regulatory, for example price controls or pollution standards.
The United States authorities appear to assimilate all forms of government intervention with subsidies.
Neither Article VI nor Article XVI of the GATT contain precise guidelines on the subject. However, the Illustrative List of Export Subsidies repeatedly uses such terms as 'provision', 'delivery', 'exception, remission' or 'grant' by governments. The last item of the list, number '1' expressly refers to 'any other charge on the public account constituting an export subsidy ...' These references clearly imply that a financial contribution by the State is an indispensable prerequisite of a subsidy". (42)
33. Hence there would seem to be a fundamental divergence in that respect between the Community' s position and that of the United States.
34. United States law permits the charging of anti-subsidy duties on subsidies from private funds, (43) even though, according to legal writers, the United States authorities are cautious in availing themselves of that possibility. (44) In their aforesaid article, however, G. Horlick, R. Quick and E. Vermulst lay emphasis on conduct by the State, even where the funds are of private origin, in coming to the conclusion that the measure in question is to be classified as a subsidy. They take the view that "in between assistance provided by the government and subsidies by private companies one could locate subsidies, provided by private companies at the order of the government. It is this government-mandated type of assistance that the phrase 'required by government action' intends to cover. A good example of this practice can be found in the 1982 Certain Steel Products from Spain Case, in which the ITA found that the Spanish government had directed banks to lend certain funds to exporting companies in Spain at preferential rates and found this to confer a countervailable subsidy". (45)
35. On the other hand, in a decision of 18 April 1985 (46) the Commission clearly reiterated its position on the matter in stating that "as far as international trade is concerned, the crucial characteristic of a subsidy is that it involves a financial contribution by government. This results inter alia from item (L) of the Illustrative List of Export Subsidies appended to the Code on Subsidies. The list, which is also annexed to Regulation (EEC) No 2176/84, (47) makes it clear that any subsidy must involve a charge on the public account. To extend the concept of subsidies to include practices other than those involving such a charge would be excessive, and taken to its extreme could lead to any government intervention whatsoever in the economy being regarded as a subsidy, including tax measures or even regulatory action such as the introduction of price controls or pollution standards".
36. The Commission' s position in principle is confirmed, moreover, by the Court' s case law. In Fediol v Commission, (48) where the applicant maintained that the concept of subsidy did not necessarily presuppose a burden on the Treasury, the Court referred to the Illustrative List of Export Subsidies annexed to Regulation No 2176/84, stating that
"the last paragraph of that list defines as constituting an export subsidy in the sense of Article XVI of the GATT 'any other charge on the public account' ", (49)
and came to the conclusion that
"it follows both from the terms of that general provision and from the other examples mentioned in the list that in the mind of the Community legislature the concept of export subsidy necessarily implied a financial burden borne directly or indirectly by public bodies". (50)
37. Consequently, it is at the very heart of a problem widely discussed within GATT that the Court is called upon to adjudicate on a similar matter.
38. In his Opinion in Fediol v Commission, moreover, Advocate General Mancini relied, in particular, in support of the view finally adopted by the Court, on "the manner in which the Treaty ° which, it must not be forgotten, is an agreement governed by international law ° defines the related concept of aid". He went on to state that, in his view, aid "according to Article 92 also consists of a measure adopted by the State, which affects public resources and is intended to promote certain undertakings or certain kinds of production". (51)
39. In support of its view that the measure at issue in this case constitutes aid within the meaning of Article 92(1), the Commission at the hearing referred by way of example to a levy introduced by the State on the purchase of certain products, which is paid into a fund that passes on the sums in question to a given undertaking. In its view, such a measure indisputably constitutes aid within the meaning of Article 92(1).
40. It is necessary, as I see it, in view of the facts of the case, to take a more far-reaching example. Let us take, for the sake of argument, a public measure which requires individuals ° consumers, workers, trading companies or any other category of private persons ° to pay certain sums to a given undertaking or a given sector of industry. In my view, it follows from the ratio legis of Article 92, namely maintaining equal conditions of competition between rival traders, that such a measure ought to be classified as aid. The "public" nature of the aid which is implicit in Article 92(1) relates more to the authority which adopted the measure ° the State and its agencies ° thereby disrupting normal market conditions, than to the body or the person financing the aid. The revenue of the State is provided by private individuals, through direct or indirect taxation and, ultimately, whatever the nature and the number of intermediate entities, the financing of the aid is to a greater or lesser extent borne in any event by individuals and traders. As I see it, and as the Court stated in Steinike und Weinlig, (52)
"regard must primarily be had to the effects of the aid on the undertakings or producers favoured ...". (53)
There is no special need, therefore, to take account of the origin of the funds.
41. Where an undertaking is favoured, as a result of a derogation arising from specific conduct by the State, regardless of the origin of the financing, the conditions of competition are affected and Articles 92 and 92 of the Treaty must then be applied.
42. If the German Government had introduced a special fund, financed by compulsory contributions levied on the pay of seafarers who are nationals of non-member countries and used for financing German shipping investments, such a measure would indisputably have fallen within the scope of Articles 92 and 93. The absence of any intermediary in this case does not strike me as a crucial factor.
43. The "public" nature of the measure relates, as I see it, only to the question of responsibility. In other words, has the aid been introduced as a result of conduct for which the State is responsible? In Van der Kooy v Commission, (54) Gasunie being a private company part of whose capital was held by the Netherlands State, the Court was concerned to establish the full extent of the influence which the Netherlands Government could exert on Gasunie' s decisions concerning the fixing of tariffs. (55) At times, the measures in question are quite simply laid down by law, regulation or administrative action. In this case, the measure which may possibly be classified as aid is the result of a Federal law and the question whether the State has engaged in conduct for which it can be held responsible is not open to doubt.
44. In that respect, undue importance should not be attached to the optional nature of the measure. Where it is the result of specific conduct engaged in by a Member State of its own free will, the fact that the contested measure confers a mere option is not sufficient, on its own, to enable it to escape the application of Article 92(1). The structure of the market, and the vigorous competition on that market in the Community, may lead to a de facto situation in which practically all the undertakings which may benefit from the advantage in question avail themselves of the possibility thus offered to them of reducing their production costs. Aid to assist the installation of undertakings in a given geographical area is not of an obligatory nature either, nor is it any easier to identify a priori the precise range of beneficiaries. It is not disputed, however, that such measures constitute aid.
45. The Court' s judgment in Van Tiggele (56) can undoubtedly be explained by the specific nature of rules on pricing, which are incompatible with Article 30 of the EEC Treaty where, like the setting of minimum prices at a given level, they may adversely affect the sale of imported products. No doubt the fact that they are in the nature of general measures also prevents them, except in special circumstances, (57) from being regarded ipso facto as aid. I shall turn to the extremely delicate question of general measures presently.
46. This case therefore constitutes an opportunity through the development of Community law on aid to initiate a parallel trend in anti-subsidy legislation which would enable the Commission, like its United States counterpart, to combat measures affecting the commercial interests of the Community more effectively. As H. Lesguillons has emphasized, after recalling the position adopted by the Commission in Fediol v Commission, (58) "the Commission is to some extent restrained by the provisions of Articles 92 and 93 of the EEC Treaty and its own assessments concerning the aid granted by Member States to their undertakings and also by the Community aid schemes for undertakings. Overall consistency is required".
47. Admittedly, although aid may be directly financed by private persons, there are many official rules which, where they enable certain undertakings or certain sectors of industry to reduce their production or marketing costs, can where appropriate be described as aid. At the hearing the German Government referred by way of example to a measure which does not subject all undertakings to legislation on protection against dismissal or the requirement concerning the joint management of undertakings. It is in that connection, as I see it, that the criterion of the "selectivity of aid" (59) applies for the purpose of distinguishing those general measures from aid. That condition is expressly referred to in Article 92(1) which requires that the aid should favour "certain undertakings or the production of certain goods".
48. It is a very awkward question on which the Court has been somewhat reticent in expressing its views hitherto. In its judgment in Commission v France, (60) the Court rejected the argument to the effect that the introduction of a preferential rediscount rate on exports cannot be described as aid since it applies for the benefit of all domestic exports. (61) Similarly, in proceedings instituted against Italy for failure to fulfil its obligations, (62) the Court approved the Commission' s decision to treat as aid the partial taking over by the State of employers' contributions entailing a greater reduction in those contributions to the sickness insurance scheme for female employees than for male employees, thereby favouring certain Italian industries employing large numbers of female employees. In her Opinion in that case, Advocate General Rozès reminded the Court that
"the Commission has however admitted that the system established by Law No 33 of 23 February 1980 constituted only a first stage in the extension of the taking over by the State of employers' contributions to the sickness insurance scheme to the whole of the Italian economy and it is of a sufficiently general nature not to fall within the scope of Article 92(1) except on one point relating to the greater reduction for female employees. That reduction had the effect of favouring certain sectors which were particularly active in trade between Member States and which employ a largely female work force and it thereby constituted an aid incompatible with the common market". (63)
49. In Commission v Ireland (64) the Commission maintained that government measures favouring domestic production as a whole over imported products were too general to fall within the scope of Article 92(1). In his Opinion in the same case, however, Advocate General Capotorti took the opposite view. With regard to Article 92, he stated that
"that provision has frequently been interpreted in such a way that the reference to 'certain undertakings or the production of certain goods' has a strictly limited meaning: in other words, as if the only State aids declared incompatible with the common market were those of a sectorial nature. But I consider that that interpretation is mistaken. It is sufficient to observe that among the categories of aid which are or may be considered to be compatible with the common market (Article 92(2) and (3)) there are some which are clearly not sectorial in character (such as aid to make good the damage caused by natural disasters, or aid to remedy a serious disturbance in the economy of a Member State); it is not clear why it should have been necessary to mention such aids if the general rule of incompatibility contained in paragraph (1) of the article in question concerned only sectorial aids. In any case, quite apart from the wording of Article 92, I take the view that it is perfectly justifiable to speak of a general principle of the prohibition of public aids to domestic products, if one wishes to avoid the incongruous view that sectorial aids are prohibited and those of wider scope are permitted". (65)
50. I share that view. Let me emphasize, however, in the words used by C. Quigley, (66) that "the dividing line between general aids and general measures of economic policy may be rather obscure". As I see it, it is necessary to establish the existence of a specific factor enabling a general measure to be classified as aid. I am inclined to take the view, on reading the Court' s case law, that the only fundamental precondition for the application of Article 92(1) is that the measure should constitute a derogation, by virtue of its actual nature, from the scheme of the general system in which it is set.
51. That, as I see it, is the ratio decidendi of the Court' s judgment in Commission v France (67) classifying the introduction of a preferential rediscount rate on exports as aid. There the derogation lies in the existence of a special rate, lower than that generally applicable.
52. The same holds true with regard to the Court' s judgment in Commission v Italy (68) in which the Commission identified the aid as consisting in the larger reduction in employers' contributions to the sickness insurance scheme for female workers. Similarly, in its judgment in the Italian textile case, the Court held that the measure in question partially exempted "undertakings of a particular industrial sector from the financial charges arising from the normal application of the general social security system, without there being any justification for this exemption on the basis of the nature or general scheme of this system". (69)
53. The reference to the possibility of justifying the exemption "on the basis of the nature or the scheme" of the system demonstrates the need to identify the contested provision as a derogation from, as it were, "the legal norm".
54. No doubt evidence of recourse to that criterion is also to be found in the Court' s case law on State holdings in the capital of undertakings governed by private law. It is the acquisition of a capital holding on terms other than those of a private investor that characterizes the concept of aid in such a case. (70) In the "classic" situation involving the grant by the State to an undertaking of a subsidy or loan at a preferential rate, a derogation also occurs either because the public authorities do not, by virtue of their nature, finance private individuals or in so far as the conditions in which the transaction is carried out are not those prevailing on the market.
55. That reference to aid being in the nature of a derogation is unquestionably related to political and philosophical conceptions regarding the role of the State and the limits of its intervention in the economic sphere. There is nothing surprising in that since the ratio legis of Article 92 is to subject to joint supervision intervention by the State which goes beyond the general legislative framework of economic activities, particularly in fiscal and social matters. The concept of derogation makes it possible, as I see it, far more than the identification of specific beneficiaries, to distinguish between aid and those general measures of economic and social policy.
56. As M.J. Sussman has pointed out, (71) with regard to the concept of subsidies in the United States legislation applying the GATT provisions "no government benefit is used by every citizen; all accrue to specific sectors. For example, paved roads are mainly used only by vehicle drivers, and in developing countries, large portions of the population may gain little from such benefits; government support of employee training, such as the United States provides, accrues only to industries that have such programs; and government provision of copper at prices just slightly above cost is a benefit which accrues only to users and consumers of copper". (72)
57. Admittedly, it is very easy to identify specific recipients of the aid where it takes the form of a payment of capital sums to a specified undertaking. In the case of a general measure, however, that criterion reveals the full extent of its inadequacy since, as the aforesaid writer has demonstrated, even general measures are in any event of benefit to certain individuals only. Similarly, in the case of a derogation for the benefit, for instance, of export undertakings, it is impossible to determine a priori the precise range of beneficiaries. In those circumstances, it seems to me, the aid must be characterized by the very fact of being in the nature of a derogation.
58. The dividing line between the scope of Articles 92 and 93, on the one hand, and that of Articles 99 to 102, on the other, is by no means easy to draw. In my view, a measure constitutes a derogation where it does not apply to all the undertakings or all the sectors of industry which, in view of the nature and the scheme of the system, would be capable of benefiting from it.
59. That problem can be clarified by reference, by way of illustration, to the Court' s judgment in Commission v France. (73) The fixing of a rediscount rate for all French products, whether or not intended for export, would have been a general measure which, as I see it, could not have been classified as aid even if that rate were more favourable than the one applied in other Member States of the Community. Such distortions of competition against undertakings operating in other Member States could be avoided by recourse to Articles 99 and 102 of the Treaty. However, where the preferential rate applies to exports alone, there is an advantage actually inherent in the market of the State in question in favour of export undertakings. Where that advantage affects trade between Member States, it constitutes aid within the meaning of Article 92(1).
60. Another example is provided by the Court' s judgment in Commission v Italy. (74) It is the more substantial reduction in the rate of employers' contributions solely for female employees that gives an advantage to Italian undertakings which largely employ female workers. In that case, the Commission acknowledged that a reduction on equal terms in employers' contributions would have brought the measure outside the scope of Article 92.
61. Some authors have employed the concept of "discrimination" in that connection. (75) Although it is not incorrect, that concept is ambiguous, in my view, so far as aid is concerned since discrimination necessarily implies the existence of undertakings or products in an identical situation, and therefore in competition, which are excluded from the benefit of the contested measure. In this case, aid may, as I see it, be restricted de facto to certain undertakings or to certain products when there are no competing undertakings or products in the Member State in question. Nevertheless, by derogating from the normal application of the system concerned, the aid distorts competition to the detriment of undertakings established in other Member States. It is unnecessary, in my view, to identify "discrimination" within the Member State in question, which would involve establishing the existence of competing products or undertakings. Once again all that is required, it seems to me, is that the measure should be in the nature of a derogation.
62. As I have said, the derogation criterion precludes, as I see it, fiscal or social measures which are of general application from being regarded as aid inasmuch as all the undertakings of the Member State in question may benefit therefrom, for instance the fixing of employers' contributions or taxation of commercial profits at a given rate. If the level of fiscal and social obligations incumbent on undertakings in one Member State is appreciably lower than it is in other States, a situation of that kind, which undoubtedly affects competition, may be resolved by applying Articles 99 to 102 of the EEC Treaty. In other words, a general advantage conferred by national legislation of one sort or another cannot be caught by means of Article 92(1); for the application of that provision, it is necessary to point to the existence of an additional advantage resulting from a derogation from the legislation in question, especially social or fiscal legislation. That, in my view, is what the Court stated in its judgment in Italy v Commission (76) when it considered that
"... Articles 99 to 102 of the Treaty provide for detailed rules for the abolition of generic distortions resulting from differences between the tax and social security systems of the different Member States whilst taking account of structural difficulties in certain sectors of industry.
On the other hand, the unilateral modification of a particular factor of the cost of production in a given sector of the economy of a Member State may have the effect of disturbing the existing equilibrium". (77)
63. The same problems arise in connection with the concept of subsidies in the GATT Code on subsidies and countervailing duties. As J.F. Beseler and A.N. Williams emphasize, (78)
"The effects of measures of a general nature on international trade are difficult or even impossible to determine since they tend to be mitigated or counterbalanced by other macro-economic factors, such as, for example, the variation in exchange rates or the level of taxation influenced by the measures in question. In any case, any attempt to call a measure of a general nature a subsidy would be absurd because, ignoring that the policies of all modern States imply, to varying degrees, some financial intervention of the government, it would make countervailable large sections of social and economic policy".
64. Those writers also point out that
"the Community, though not having specifically mentioned this criterion in its own legislation, has therefore consistently argued in GATT that sector specificity is an indispensable requirement of any domestic subsidy". (79)
65. In its decision of 16 April 1985, (80) the Commission recalled that "governments have always used financial intervention as an essential tool of economic and social policy. So long as the impact of such interventions is general, they do not distort competition at the national level. Thus measures normally regarded as being in the public interest, for instance to improve a country' s infrastructure or its education, health or transport services, do not have a distorting effect. For there to be distortion of competition, the advantages must be conferred selectively; in the case of export subsidies, on goods for export but not goods for the domestic market or, in the case of domestic subsidies, with the aim of helping specific firms". (81)
66. It seems that for the Commission, however, the criterion of specificity can if necessary take the form of a derogation from the general applicability of a system. Thus, in its decision on imports of soya meal from Argentina, (82) the Commission, faced with differential rates of tax on exports of products of the soya bean family, stated in the first place that "it is clear from both GATT rules and the relevant Community legislation (the Annex to Regulation (EEC) No 2176/84) that the concept of a charge on the public account includes the waiving by the authorities of taxes or other dues owed. The Commission notes that the case in point, however, involves not the waiving of a tax but the non-creation of an additional tax burden. To regard such a non-creation generally as a subsidy would be to hold the very fact that a government levies tax on some people or products but not others as equivalent to a financial contribution to the latter". (83) However, it acknowledged that "one might ask whether the above line of reasoning would still hold true if the new tax obligation constituted the general rule and the non-creation of such an obligation was an exception to this general rule". (84)
67. Moreover, the derogation criterion was adopted by the Court in its judgment in Fediol v Commission, (85) where it pointed out that
"the concept of a charge covers not merely cases in which the State advances funds but also those in which it waives recovery of tax debts thereby introducing an exception to a generally applicable rule of taxation", (86)
and that the applicant had failed to establish that
"the Argentinian State deprived itself of revenue which it would normally have collected under the general system". (87)
68. The criterion which I would advise the Court to adopt with regard to aid would thus be entirely consistent with that which the Court has applied in its case law with regard to the concept of subsidies.
69. United States law on that point is highly uncertain. The International Trade Administration, which is responsible for applying the anti-subsidy duty, has applied the "specificity test" in that regard, which is generally defined as follows: "The relevant inquiry under it is whether the benefit is bestowed upon a specific sector of the economy or is available generally to any similarly situated potential beneficiary. If the benefit is targeted to a specific sector, it is a countervailable bounty or grant. If it is made generally available to all similarly situated sectors, it is considered to be a valid non-countervailable government program, even if it has the incidental effect of encouraging exports". (88) That "test" was, however, rejected by the Court of International Trade in its judgment in Cabot Corporation v United States (89) in favour of an analysis concerning exclusively the effects of the contested measures.
70. Legal writers in the United States have offered differing assessments of that judgment. (90) M.J. Sussman (91) has thus pointed out that "if a 'bounty or grant' is defined for the purpose of the countervailing duty law solely by its effects, then a subsidy will be found whenever there is a difference between the cost of production of an imported good and its cost of production in the absence of a particular government or private benefit bestowed on the producer. Under this definition, virtually every act of government is a subsidy, including such things as the construction and maintenance of roads and the provision of police and armies".
71. However, the Court of International Trade has excluded "public goods" from that definition of subsidies, pointing out that "governments provide many such goods and services because of the inability of the price system to effectively provide these goods which tend to be indivisible and collectively consumable by all citizens whether they pay for them or not ... A public good provided by government benefits society in a collective manner. It is not conferred upon any specific enterprise or industry". (92)
72. No doubt there is no need in this case to determine which of Articles 99 to 102 constitutes the most suitable basis for eliminating distortions of competition resulting from the fiscal and social systems of the Member States. As D. Vignes emphasized in 1973, (93) "having established that in 14 years of the Community' s existence Article 101 has very rarely been relied upon and has not served as a basis for any Community act, it is legitimate to raise the question whether that provision is not inappropriate and is not based on an incorrect analysis". And yet the actual wording of that provision would seem to be aimed at national measures of general application whose "disparity ... distorts the conditions of competition in the common market and thereby gives rise to a distortion ...". In 1956 a distinction was drawn in the Spaak Report between general distortions attributable to the characteristics of the Member States' social or fiscal legislation, whose repercussions on the costs incurred by undertakings were "normally offset by the general conditions of trade, in particular the exchange rate", (94) and individual distortions specifically concerning a sector of a Member State' s economy. Those distortions fell within the scope of Article 101. So far, however, the Court has not given any indication of the scope of that article in its decisions. As D. Vignes has pointed out, that provision has a scope of its own inherent within the wider scope of Article 100. No doubt the non-application of Article 101 is also the result of the fact that the situations referred to in the Spaak Report as falling within that provision ("distortions for the benefit or to the detriment of certain branches of industry or certain types of undertakings", "difference in the cost price ... artificially introduced between undertakings which, moreover, may exhibit the same economic or technical characteristics") would nowadays be treated as constituting aid within the meaning of Article 92(1).
73. I now turn to the application in the present case of the "derogation" criterion which I have sought to elicit from the Court' s case law as a whole.
74. The question is a delicate one. Does the measure at issue constitute a derogation from a general system? The German Government submits that before the establishment of the additional shipping register, Article 30 of the Introductory Law to the German Civil Code already permitted German law not to be applied in such a case. According to the German Government, that possibility was confirmed by a judgment of the Bundesarbeitsgericht of 24 August 1989. (95) The intervener recalls that in such a case international law also provides for the right not to apply the legislation of the flag State. Reference is made, in particular, to Article 5(1) of the Convention of 29 April 1958 on the high seas and to Article 6 of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations. (96) The Law introducing an additional shipping register was adopted only so as to clarify the situation since German shipowners were uncertain, at any rate until the aforesaid judgment of the Bundesarbeitsgericht, whether it was open to them not to apply German national law and preferred in any event to enter their vessels in the registers of States not belonging to the Community.
75. Those observations are important. The measure at issue, let me point out at once, is not, as I see it, in the nature of a derogation at all. It is simply a rule setting limits to the application of German law or, more precisely, enabling individuals faced with an extraneous factor to choose the law applicable to agreements between them. As the German Government has pointed out ° rightly, in my view ° it is only when the legal system of a Member State is applicable that the State may adopt, within that legal system itself, specific derogations which are then subject to the application of Articles 92 and 93 of the EEC Treaty. In that respect the situation is similar to that of Community undertakings which choose to manufacture their products in non-member countries where wage bills are lower. It would be inconceivable to apply Article 92 of the Treaty to the legislation of a Member State which enables such undertakings not to apply the rates of pay prescribed by national law. The specific features of this case stem from the fact that shipping companies are able to employ workers who are nationals of non-member countries without their residing in a Member State and therefore being required to apply for a residence permit in that State.
76. It is irrelevant in that regard that the German legislature considered it appropriate to introduce an additional shipping register as a reminder of that possibility. In view of the aforesaid judgment of the Bundesarbeitsgericht, that reform does not constitute a derogation from the previous legal position according to which the application of the labour law of the flag State would have been compulsory.
77. Nor does the Court in its case law seem to treat the change in relation to the previous legal position as a decisive criterion. Admittedly, in its judgment in Italy v Commission (97) the Court considered that
"in the application of Article 92(1), the point of departure must necessarily be the competitive position existing within the common market before the adoption of the measure in issue". (98)
That, however, would seem to be in order to examine whether or not the measure at issue affects trade between the Member States. (99)
78. In its judgment in Greece v Commission, (100) the Court held that
"... it is irrelevant that, by comparison with the previous export credit system, the repayment of interest is economically neutral in its effect on the competitiveness of Greek exports and that the Commission took no action regarding the previous system, since the present system, viewed independently from its predecessor, favours certain undertakings". (101)
79. Similarly, no account can be taken of the intentions expressed by the German legislature at the time of the adoption of that second shipping register. In the first place, in connection with the point at issue here, that register does not, I would remind the Court, derogate from the legal position as it was; secondly, in its case law the Court does not lay emphasis on the "aims of the measures of intervention concerned" (102) but defines the concept of aid "in relation to their effects". (103) In the only case (104) in which the Court took account of the fact that the contested provisions had been described by the government in question as forming part of a group of measures in favour of certain traders, that government, after notifying the provisions in question to the Commission pursuant to Article 93(3), denied before the Court that they were in the nature of aid within the meaning of Article 92(1). (105) Although in that case the Court classified the measure in question as aid, it was primarily because the detailed rules for the grant thereof corresponded to those for ordinary State aid.
80. The crucial factor, in my view, is to ascertain whether there is a general rule according to which the labour law of the flag State must be applied to contracts of employment for non-resident seafarers who are nationals of non-member countries.
81. That is not the case either under German law or under the rules of private international law in force as between the Member States. Thus the Rome Convention enables the parties to a contract of employment to choose the law applicable to the contract (Articles 3(1) and 6(1)), provided the employee is not deprived of the protection afforded to him by the mandatory rules of the law applicable in the absence of choice. That law, according to Article 6(2), may be either the law of the country in which the employee habitually carries out his work, or the law of the country in which the place of business through which he was engaged is situated, or else the law of another country with which the contract of employment is more closely connected. In that regard, it is not unreasonable, as I see it, to take the view that, if that were the case, a contract of employment for a Filipino seafarer, drafted in Spanish, concluded in the Philippines and concerning employment on a vessel plying between south-east Asia and Germany, with the seafarer unable to reside in Germany in any circumstances, might be governed by Filipino law.
82. The Proposal for a Council regulation establishing a Community ship register and providing for the flying of the Community flag by sea-going vessels, (106) which was submitted by the Commission on 2 August 1989, provides in Article 8 that
"wages, working hours and further labour conditions of seafarers, who are not nationals of a Member State, on board vessels registered in EUROS, shall be in accordance with the Wages of the International Labour Organization (ILO), Hours of Work and Manning (Sea) Recommendation (No 109), 1958, (107) subject to any arrangement on collective wages agreed upon with organizations as referred to in Article 9",
and in Article 9(1) that
"if Community vessel owners who have registered the vessels which they own or operate in EUROS employ seafarers who are not nationals of a Member State such seafarers may be employed only on the basis of collective wage agreements concluded with trade unions or similar organizations of the country where they are resident".
83. It is worth noting that the Commission submitted an amended proposal of that regulation on 13 December 1991. (108) In the preamble thereto, Article 92(3)(d) of the EEC Treaty is now referred to alongside Article 84(2). That may be attributable, however, to the existence of a new Article 18 which permits Member States to reimburse to employers income tax payable by seafarers who have their fiscal residence in a Member State in respect of wages received for the period of their employment as members of the crew of a vessel registered in EUROS. A measure of that kind indisputably constitutes aid, as is clear, moreover, from the new recitals 17 to 20 in the preamble to the amended proposal.
84. Admittedly, Article 9(3) of the initial proposal provided that "the law of the Member State of registration of the vessel or, if explicitly referred to in the agreement, any other Member State, shall apply" to collective wage agreements concluded with organizations representing seafarers who are nationals of non-member countries, and Article 15(3) of the amended proposal provides that "the law of the Member State of registration of the vessel or, if explicitly referred to in the agreement, any other Member State (109) shall apply to such collective wage agreements". Even in the initial version of the proposal, the application of the law of a Member State was of interest to seafarers only in so far as the minimum rate of pay is authoritively fixed by legislation and must therefore as such be taken into account by collective agreements. It is otherwise where, as under German law for instance, the minimum rate is determined by agreements negotiated between workers and employers.
85. The application of the rates of pay provided for by the collective agreements in force in the flag State is thus not made compulsory in the proposal for a regulation.
86. With regard to the solutions adopted under the national laws of the Member States, it must be stated that a number of those States permit the law of the flag State not to be applied, without necessarily having recourse to a second register.
87. Under Greek law, for instance, Article 25(2) of the Civil Code provides that, in the absence of a choice by the parties "the proper law of the contract, according to all the relevant circumstances, is to apply". For those purposes the courts rely on criteria such as the nationality of the seafarer, the place where the contract was concluded and the place of performance, the language in which the contract was drawn up, the location of the shipowner' s registered office, and the flag flown by the vessel, although the last-mentioned factor is not decisive. (110)
88. Under Irish law, the application of national law with regard to remuneration is conditional on the recruitment of the seafarer in Ireland, which thus makes it possible to exclude the application of Irish law in relation to seafarers who are nationals of non-member countries and are not resident in the Community.
89. Under English law, the 1978 Employment Protection (Consolidation) Act and the 1986 Wages Act, which confer various rights on workers particularly with regard to pay, are not applicable to seafarers who are nationals of non-member countries working on vessels flying the flag of the United Kingdom but are not resident there. Such persons are not required to pay social security
contributions. (111)
90. However, Member States which make no provision for a secondary or international flag or whose law does not permit a foreign law to be applied so far as concerns entitlement to remuneration to seafarers sailing on vessels flying their flag are those in which the employment of non-Community seafarers is prohibited or seriously restricted.
91. Thus, under Belgian law, the Law of 5 June 1928 laying down rules in respect of contracts of employment at sea provides in Article 10 that seafarers must be recruited, "except in cases of force majeure, from amongst persons registered in the pool of merchant sailors". Registration in the pool, according to the Royal Decree of 9 April 1965, is conditional on residence in Belgium (Article 7(1)). Without prejudice to international agreements, foreigners may not be registered in the pool except in the absence of Belgian applicants and subject to residence in Belgium.
92. Under Spanish law, Basic Law No 7 of 1 July 1985 on the rights and freedoms of foreign nationals in Spain (112) and Articles 30 to 33 of Royal Decree No 1119 of 26 May 1986 (113) prohibit undertakings from engaging foreign employees unless they have already obtained a Spanish work permit, without prejudice to international agreements ratified by Spain. According to Article 1.5(2) of the Statute of Workers, (114) for the purposes of work at sea, a vessel is deemed to constitute a place of employment situated in the administrative district of its home port.
93. The recruitment of seamen under Italian law is subject to their registration as "gente di mare" in seafarers' registers. (115) Such registration is restricted to Italian nationals, without prejudice to the obligations imposed by Community law. (116)
94. Similarly, access to "inscriçao marítima" in Portugal, which makes it possible for persons to be recruited as seafarers and to obtain the corresponding permit, is restricted to Portuguese nationals, subject to the obligations imposed by Community law and to international agreements ratified by Portugal. (117)
95. A number of Member States, like the Federal Republic of Germany, have introduced a secondary flag whose aim is not merely to permit the application of a foreign law so far as concerns pay in the case of seafarers who are nationals of non-member countries. That flag authorizes, for instance, the employment of those seafarers in greater numbers. That is the case of the second register in the French Southern and Antarctic Territories, otherwise known as the "Kerguelen flag", (118) or of the Luxembourg public shipping register, set up by Law of 9 November 1990. (119) Its significance sometimes lies in the tax relief it provides for shipowners whose vessels fly that flag. That is true in the case of vessels registered in the United Kingdom' s overseas territories. (120)
96. That brief analysis of the situation obtaining in the Member States shows that in no circumstances can the application of the law of the flag State to the rates of pay under contracts of employment for non-resident seafarers who are nationals of non-member countries be taken as the general rule. Legislation which merely permits the application of another law is not therefore at all in the nature of a derogation from what is, as it were, the "legal norm".
97. The disruptive effect of any Member State' s fiscal or social legislation on competition within the Community, which might be resolved by the harmonization of such legislation, may arise, as I see it, both from the substantive provisions of that legislation and from those governing its scope, where the latter in no way constitute a derogation from the rules resulting from the "nature or scheme" of the system.
98. On those grounds, I have come to the conclusion that Article 92(1) of the EEC Treaty should be interpreted as not applying to legislation of the kind which I have considered above.
99. A final observation. Should the Court decide not to adopt the solution which I advocate, it would then be for the Commission to determine whether such aid affects trade between Member States and whether it distorts or threatens to distort competition.
100. Meanwhile, it would no longer be possible to apply the German system, which has not been notified under Article 93(3).
101. Let me point out in that regard that, according to the Court' s recent judgment in FNCEPA v France, (121) it is then for the national courts to
"guarantee to individuals who are able to rely on such an infringement that all the consequences will be drawn therefrom, in accordance with their national law, as regards both the validity of measures involving the implementation of the aid schemes and the recovery of the financial subsidies granted in disregard of that provision or any interim measures". (122)
102. I therefore propose that the Court hold that
(1) Article 92(1) of the EEC Treaty does not apply to national legislation which, so far as concerns rates of pay and working conditions, leaves the parties free to choose the law applicable to a contract of employment concluded between a shipowner and a seafarer who is a national of a State which does not belong to the Community and who does not reside within the territory of a Member State.
(2) Article 117 of the EEC Treaty does not lay down an obligation which is sufficiently precise and unconditional to be relied upon by an individual before a national court.
(*) Original language: French.
(1) ° According to the figures provided by the Seebetriebstrat at the hearing, in 1971 49 000 German nationals were employed in the shipping sector, whilst in 1990 the figure was no more than some 13 800.
(2) ° Register established alongside the national register by the Federal Law of 23 March 1989, BGBL I p. 550.
(3) ° Law on the introduction of an additional shipping register for ships flying the Federal German flag in international trade, BGBl. I p. 550.
(4) ° The minimum rate in Germany is determined not by legislation but by collective agreements.
(5) ° Judgment in Case 149/77 [1978] ECR 1365.
(6) ° Emphasis added.
(7) ° [1978] ECR 1380, at p. 1386.
(8) ° See, for instance, the Opinion of Advocate General Tesauro in Case C-200/90 Dansk Denkavit and P. Poulsen Trading v Skatteministeriet, delivered on 30 January 1992, paragraph 10, concerning the direct effect of Article 33 of the Sixth Council Directive on value added tax prohibiting the introduction of charges which can be characterized as turnover taxes.
(9) ° Judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 15.
(10) ° For example, the judgment in Case 290/83 Commission v France [1985] ECR 439, paragraph 14; see also the judgments in Case 78/76 Steinike und Weinlig v Germany [1977] ECR 595, in Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 12, and in Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraph 35.
(11) ° Case 173/73, cited above; see also the judgment in Case 47/69 France v Commission [1970] ECR 487.
(12) ° Paragraph 16.
(13) ° Judgment in Case 78/76, cited above.
(14) ° See paragraph 1.
(15) ° Paragraph 21, emphasis added.
(16) ° Case 290/83 [1985] ECR 439.
(17) ° Paragraph 15.
(18) ° Case 102/87 [1988] ECR 4067.
(19) ° Paragraph 5.
(20) ° Judgment in Case 57/86 [1988] ECR 2855.
(21) ° Paragraph 13.
(22) ° Judgment in Case 72/79 [1980] ECR 1411.
(23) ° Inter-departmental Price Committee.
(24) ° Paragraph 23.
(25) ° Paragraph 24.
(26) ° Joined Cases 67, 68 and 70/85, cited above; see also the Court' s recent judgment in Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraphs 11 to 14.
(27) ° Representing horticultural organizations.
(28) ° Paragraph 36.
(29) ° Paragraph 37.
(30) ° Paragraph 38, emphasis added.
(31) ° Judgment in Joined Cases 213/81 to 215/81 [1982] ECR 3583.
(32) ° Opinion in Joined Cases 213/81 to 215/81, cited above, at p. 3617.
(33) ° Judgment in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25.
(34) ° Article 92 of the EEC Treaty.
(35) ° Paragraph 24.
(36) ° Paragraph 25.
(37) ° Signed on completion of the Tokyo Round on 12 April 1979.
(38) ° Government Actions against Domestic Subsidies, an Analysis of the International Rules and an Introduction to United States Practice, Legal Issues of European Integration, 1986, p. 1, at p. 9.
(39) ° GATT, BISD, 9th Supp., paragraph 12, p. 192 (1961).
(40) ° Ibid., paragraph 344, p. 200.
(41) ° London, Sweet and Maxwell, 1986.
(42) ° p. 123.
(43) ° Paragraph 303 of the Tariff Act 1930, Paragraph 701(a)(i)(b) of the Trade Agreements Act 1979.
(44) ° G. Horlick, R. Quick and E. Vermulst, op. cit., p. 31.
(45) ° Op. cit., p. 32.
(46) ° Commission Decision 85/239/EEC of 18 April 1985 terminating the anti-subsidy proceeding concerning imports of soya meal originating in Argentina (OJ 1985 L 108, p. 28); see also Commission Decision 85/233/EEC of 16 April 1985 terminating the anti-subsidy proceeding concerning imports of soya meal originating in Brazil (OJ 1985 L 106, p. 19, paragraph 12.3).
(47) ° Regulation of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1).
(48) ° Judgment in Case 187/85 [1988] ECR 4155.
(49) ° Paragraph 11.
(50) ° Ibid.
(51) ° Opinion in Fediol v Commission, cited above, at p. 4178.
(52) ° Case 78/76, cited above.
(53) ° Paragraph 21, emphasis added.
(54) ° Judgment in Joined Cases 67, 68 and 70/85, cited above.
(55) ° See paragraph 36, cited above, paragraph 24.
(56) ° Judgment in Case 82/77, cited above.
(57) ° Such as price levels favouring certain products to the detriment of competing products.
(58) ° Dumping, subventions et autres mesures de défense commerciale, Ferlex Editions, 1989, vol. 1, p. 841-842.
(59) ° An expression used, in particular, by A. Mattera in Le marché unique européen, ses règles, son fonctionnement, Jupiter, 1990, 2nd Edition, p. 67.
(60) ° Judgment in Joined Cases 6 and 11/69 [1969] ECR 523.
(61) ° Paragraph 21.
(62) ° Judgment in Case 203/82 Commission v Italy [1983] ECR 2525.
(63) ° Opinion in Commission v Italy [1983] ECR 2533.
(64) ° Judgment in Case 249/81 [1982] ECR 4005, at p. 4015.
(65) ° Opinion in Commission v Ireland [1982] ECR 4024, at p. 4031.
(66) ° The Notion of a State Aid in the EEC, European Law Review, vol. 13, 1988, p. 243, at
p. 245.
(67) ° Judgment in Joined Cases 6/69 and 11/69, cited above.
(68) ° Judgment in Case 203/82, cited above.
(69) ° Judgment in Case 173/73, cited above, paragraph 15, emphasis added.
(70) ° The Court' s most recent decision on that point is the judgment in Case C-303/88 Italy v Commission [1991] ECR I-1433.
(71) ° Countervailing Duties and the Specificity Test: an Alternative Approach to the Definition of Bounty or grant, Law and Policy in International Business, 1986, vol. 18, p. 475.
(72) ° P. 505.
(73) ° Joined Cases 6/69 and 11/69, cited above.
(74) ° Judgment in Case 203/82, cited above.
(75) ° J. Carbajo in C. Blumann, Les aides nationales dans la Communauté européenne, Publications de l' Université de Tours, 1987, p. 12.
(76) ° Judgment in Case 173/73, cited above.
(77) ° Paragraph 17.
(78) ° Op. cit., p. 138; see also Decision 85/233/EEC, cited above, paragraph 7.3.
(79) ° EEC Memorandum in the European Steel Products Case, GATT, Doc. No SCM/35, 21 October 1982, cited by Beseler and Williams, op. cit., p. 138.
(80) ° Decision 85/233/EEC, cited above.
(81) ° Ibid., paragraph 7.3.
(82) ° Decision 85/239/EEC, cited above.
(83) ° Ibid., paragraph 7.4.
(84) ° Ibid., emphasis added.
(85) ° Judgment in Case 187/85, cited above.
(86) ° Paragraph 11, emphasis added.
(87) ° Paragraph 16.
(88) ° M.J. Sussman, cited above, at p. 478; that criterion is sometimes set out under the heading of principle of general availability ; see L.A. Cameron and G.C. Berg, The U.S. Countervailing Duty Law and the Principle of General Availability, Journal of World Trade Law, vol. 19, No 5, p. 497.
(89) ° 620 F. Supp. 722, 730-33, CIT (1985).
(90) ° Against: M.J. Sussman, op. cit.; in favour: J.L. Panzarella in Is the Specificity test generally applicable, Law and Policy in International Business, 1986, vol. 18, p. 417; for another, more mathematical, criterion based on the ratio between the profit of the undertakings in question and their share of gross national product, see L.A. Cameron and G.C. Berg, cited above, p. 505.
(91) ° Op. cit., p. 497.
(92) ° 620 F. Supp 722, 731-32, No 8, CIT (1985).
(93) ° In J. Megret, Le droit de la Communauté économique européenne, Editions de l' Université de Bruxelles, 1973, p. 195.
(94) ° Report of the Heads of Delegations to the Ministers of Foreign Affairs, Brussels, 21 April 1956, p. 60.
(95) ° Der Betrieb 1990, p. 1666.
(96) ° OJ 1980 L 266, p. 1.
(97) ° Judgment in Case 173/73, cited above.
(98) ° Paragraph 17.
(99) ° See paragraphs 17 to 19.
(100) ° Judgment in Case 57/86, cited above.
(101) ° Paragraph 10, emphasis added.
(102) ° Judgment in Case 173/73, cited above, paragraph 13.
(103) ° Ibid.
(104) ° Judgment in Case 290/83 Commission v France, cited above.
(105) ° Ibid., paragraphs 11 to 15.
(106) ° COM (89) 266 final ° OJ 1989 C 263, p. 11.
(107) ° According to the Belgian Government, this provides for a minimum wage of US Dollars 286 per month.
(108) ° COM (91) 483 final (OJ 1991 C 19, p. 10).
(109) ° The French version should, it seems, read tout autre État Membre, as is clear from the Italian and German versions of this provision.
(110) ° Piraeus CA 868/1980, END 1981, p. 47, A P 102/1961; Athens CA 1238/1976, NOB 1976-807, Piraeus CA 142/1983, END 1983, p. 180, Piraeus CA 852/1983.
(111) ° Sections 87 to 98 of the Social Security (Contribution) Regulations 1979 (Statutory Instrument 1979, No 591), amended by the Social Security (Contributions) (Mariners) Amendment Regulations 1982 (Statutory Instrument 1982, No 206).
(112) ° BOE No 158 of 3 July 1985.
(113) ° BOE No 140 of 12 June 1986.
(114) ° Law No 8 of 10 March 1980, BOE No 64 of 14 March 1980.
(115) ° Article 427 of the Regolamento per la Navigazione Marittima (Regulation on Sea Transport); Articles 115 and 188 of the Naval Code.
(116) ° Article 119 of the Naval Code.
(117) ° Decree Law No 104/89, DR No 80 of 6 April 1989.
(118) ° Decree No 87-190 of 20 March 1987.
(119) ° Memorandum A 1990, p. 808; of the 54 vessels flying this flag, 51 are of Belgian origin, probably as a result of the possibility of thereby circumventing the Belgian Law of 5 June 1928.
(120) ° Section 56(1) of the Merchant Shipping Act 1988 and the Merchant Shipping Act 1988 (Cayman Islands) Order 1988 (Statutory Instrument 1988, No 1841), the Merchant Shipping Act 1988 (Isle of Man) Order 1989 (Statutory Instrument 1989, No 679), the Merchant Shipping Act 1988 (Bermuda) Order 1989 (Statutory Instrument 1989, No 1334), and the Merchant Shipping Act 1988 (Bermuda) Order 1991 (Statutory Instrument 1991, No 1703).
(121) ° Judgment in Case C-354/90 [1991] ECR I-5505.
(122) ° Paragraph 12.