61985CJ0282_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 282/85
COMITE DE DEVELOPPEMENT ET DE PROMOTION DU TEXTILE ET DE L ' HABILLEMENT ( COMMITTEE FOR THE DEVELOPMENT AND PROMOTION OF THE TEXTILE AND CLOTHING INDUSTRY ), PARIS, HAVING ADOPTED THE STYLE OR NAME DEFI, REPRESENTED AND ASSISTED BY J.-P . SPITZER OF THE PARIS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF A . MAY, 31 GRAND-RUE, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY G . MARENCO, LEGAL ADVISER OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
SUPPORTED BY
GESAMTVERBAND DER DEUTSCHEN TEXTILINDUSTRIE - GESAMTTEXTIL ( NATIONAL ASSOCIATION FOR THE GERMAN TEXTILE INDUSTRY ), REPRESENTED BY HERBERT MEISTER, PETER M . WIESNER AND HOLGER WISSEL ( RECHTSANWALTE ), COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 RUE PHILIPPE-II,
INTERVENER,
Subject of the case
CONCERNING, AT THE PRESENT STAGE OF THE PROCEEDINGS, THE ADMISSIBILITY OF AN APPLICATION BY THE COMITE DE DEVELOPPEMENT ET DE PROMOTION DU TEXTILE ET DE L ' HABILLEMENT FOR A DECLARATION THAT COMMISSION DECISION 85/380/EEC OF 5 JUNE 1985 CONCERNING AN AID SCHEME FOR THE TEXTILE AND CLOTHING INDUSTRY IN FRANCE FUNDED BY MEANS OF PARAFISCAL CHARGES ( OFFICIAL JOURNAL 1985, L 217, P . 20 ) IS VOID,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 SEPTEMBER 1985, THE FRENCH COMITE DE DEVELOPPEMENT ET DE PROMOTION DU TEXTILE ET DE L ' HABILLEMENT, WHICH HAS ADOPTED THE STYLE OR NAME DEFI, HAS BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION 85/380/EEC OF 5 JUNE 1985, CONCERNING AN AID SCHEME FOR THE TEXTILE AND CLOTHING INDUSTRY IN FRANCE FUNDED BY MEANS OF PARAFISCAL CHARGES, IS VOID .
2 BY THAT DECISION, THE COMMISSION FOUND THAT THE AID TO UNDERTAKINGS IN THE TEXTILE AND CLOTHING SECTOR IN FRANCE PROVIDED FOR BY DECREES NOS 84-388, 84-389 AND 84-390 OF 22 MAY 1984 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 25 MAY 1984, PP . 1650 TO 1652 ) WAS INCOMPATIBLE WITH THE COMMON MARKET WITHIN THE MEANING OF ARTICLE 92 OF THE TREATY AND STATED THAT ' FRANCE SHALL REFRAIN FROM IMPLEMENTING THE SAID AID SCHEME ' .
3 THE DECISION, WHICH IS ADDRESSED TO THE FRENCH REPUBLIC, IS THE SUBJECT OF ANOTHER APPLICATION TO DECLARE IT VOID LODGED BY THE FRENCH GOVERNMENT ON 20 AUGUST 1985 UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE TREATY AND REGISTERED AS CASE 259/85 . IN THAT APPLICATION THE FRENCH GOVERNMENT SUBMITS IN PARTICULAR THAT THE AID SCHEME IN QUESTION IS INTENDED TO FACILITATE THE DEVELOPMENT OF CERTAIN NEW TECHNIQUES BY UNDERTAKINGS TAKING STEPS TO ADAPT THEIR OPERATIONS TO MEET COMPETITION FROM NON-MEMBER COUNTRIES WHERE LABOUR IS CHEAPER AND THAT THE AID SCHEME SHOULD THEREFORE HAVE BENEFITED FROM THE DEROGATION PROVIDED FOR BY ARTICLE 92 ( 3 ) ( C ) OF THE TREATY .
4 BY A SEPARATE APPLICATION, THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY AGAINST DEFI ' S ACTION AND THE COURT DECIDED TO ADJUDICATE ON THE OBJECTION WITHOUT CALLING FOR ARGUMENT ON THE SUBSTANCE OF THE CASE .
5 IT SHOULD BE OBSERVED THAT THE AFOREMENTIONED DECREES NOS 84-389 AND 84-390 AMENDED CERTAIN PARAFISCAL CHARGES LEVIED IN PARTICULAR ON SALES OF TEXTILE AND CLOTHING PRODUCTS OTHER THAN PRODUCTS ORIGINATING OR PUT INTO FREE CIRCULATION IN OTHER MEMBER STATES . ACCORDING TO ARTICLE 1 OF BOTH DECREES, THE PROCEEDS OF THOSE CHARGES ARE TO BE ALLOCATED BETWEEN AID TO UNDERTAKINGS, JOINT PROMOTION PROJECTS, THE INSTITUT TEXTILE DE FRANCE ( FRENCH TEXTILE INSTITUTE ) AND TECHNICAL CENTRES FOR THE INDUSTRY . FOR THE PURPOSES OF THAT ALLOCATION, THE PROCEEDS ARE TO BE TRANSFERRED TO DEFI, WHICH WAS CREATED BY THE THIRD DECREE MENTIONED ABOVE, NAMELY DECREE NO 84-388 .
6 THE LEGAL BASIS FOR THAT DECREE IS CONTAINED IN LAW NO 78-654 OF 22 JUNE 1978 CONCERNING TRADE COMMITTEES FOR ECONOMIC DEVELOPMENT ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 27 JUNE 1978, P . 2463 ). UNDER ARTICLE 1 OF THAT LAW, THERE MAY BE CREATED ' IN ANY FIELD OF ECONOMIC ACTIVITY, . . . BY A DECREE ADOPTED IN THE STATE COUNCIL, AFTER CONSULTATION OF THE REPRESENTATIVE TRADE ORGANIZATIONS CONCERNED, INSTITUTIONS OF PUBLIC UTILITY ENDOWED WITH LEGAL PERSONALITY IN CIVIL LAW BEARING THE NAME ' ' TRADE COMMITTEE . . . ' ' ' . ACCORDING TO ARTICLE 2 OF THE LAW, THE COMMITTEES HAVE AS THEIR OBJECT ' TO PROMOTE THE IMPROVEMENT OF PRODUCTION STRUCTURES IN ORDER TO ENSURE THEIR COMPETITIVENESS, TO CONTRIBUTE TO THE FINANCING OF PROJECTS TO PROMOTE SUCH IMPROVEMENTS WHICH ARE CLEARLY IN THE COLLECTIVE INTEREST AND DO NOT HINDER COMPETITION, TO INCREASE PRODUCTIVITY, TO IMPROVE ADAPTATION TO MARKET NEEDS, TO UNDERTAKE STUDIES OF ALL MATTERS RELEVANT TO THE BRANCHES OF ACTIVITY CONCERNED AND DISSEMINATE THE RESULTS OF THOSE STUDIES WITHIN THE INDUSTRY, AND TO SUPPORT ANY VENTURE WHICH IS EVIDENTLY IN THE INTERESTS OF THE INDUSTRY AS A WHOLE ' . BY ARTICLE 3 OF THE LAW, THE COMMITTEES ARE TO BE MANAGED BY A BOARD COMPOSED OF MEMBERS APPOINTED BY THE COMPETENT MINISTER, AT LEAST TWO-THIRDS OF WHOM ARE TO BE REPRESENTATIVES OF THE TRADE OR TRADES CONCERNED . FINALLY, ARTICLE 4 PROVIDES THAT THE COMMITTEES ARE TO HAVE A MEMBER APPOINTED BY THE GOVERNMENT TO REPRESENT THE MINISTER WITH THE POWER TO SUSPEND THE IMPLEMENTATION OF THEIR DECISIONS PENDING APPROVAL BY THE MINISTER .
7 REITERATING THOSE MAIN PRINCIPLES, DECREE NO 84-388 DESCRIBES DEFI ' S OBJECTIVES, RESOURCES AND STRUCTURE . ARTICLE 1, FOR INSTANCE, STATES THAT DEFI ' S OBJECTS ARE
' ( 1 ) TO PROMOTE RESEARCH, INNOVATION AND THE RENEWAL OF INDUSTRIAL AND COMMERCIAL STRUCTURES IN THE TEXTILE AND CLOTHING INDUSTRIES ;
( 2 ) TO PROMOTE IMPROVEMENTS IN STAFF TRAINING, PRODUCTION, MANAGEMENT AND MARKETING IN THOSE INDUSTRIES ;
( 3 ) TO UNDERTAKE STUDIES OF ANY ECONOMIC AND SOCIAL MATTERS OF CONCERN TO THOSE INDUSTRIES AND DISSEMINATE THE RESULTS OF THOSE STUDIES ;
( 4 ) TO SUPPORT ANY VENTURES OF GENERAL RELEVANCE TO THE INDUSTRIES CONCERNED ;
( 5 ) TO CONTRIBUTE TO THE FINANCING OF PROJECTS IN KEEPING WITH THOSE AIMS BY DECIDING ON THE ALLOCATION OF ITS RESOURCES BETWEEN AID TO UNDERTAKINGS, JOINT PROMOTION PROJECTS AND TECHNICAL CENTRES SERVING THOSE INDUSTRIES ;
( 6 ) TO ENSURE THE CONSISTENCY OF PROJECTS CARRIED OUT BY JOINT BODIES IN RECEIPT OF FINANCIAL AID FROM IT . '
8 THE DECREE PROVIDES THAT DEFI IS TO BE MANAGED BY A GOVERNING BOARD OF 15 MEMBERS APPOINTED BY A DECISION OF THE MINISTER FOR INDUSTRY, 10 OF THEM ON A JOINT NOMINATION BY THE TRADE ASSOCIATIONS AND FIVE CHOSEN BY THE MINISTER HIMSELF . THE TERM OF OFFICE OF MEMBERS OF THE BOARD MAY BE TERMINATED BY A DECISION OF THE MINISTER, WHERE APPROPRIATE AFTER CONSULTATION OF THE TRADE ASSOCIATIONS . THE GOVERNING BOARD ADOPTS THE RULES GOVERNING THE ORGANIZATION AND PROCEDURE OF THE ASSOCIATION ALTHOUGH THEY DO NOT ENTER INTO FORCE UNTIL THE GOVERNMENT APPOINTEE HAS GIVEN HIS ASSENT . THE BOARD ' S DECISIONS BECOME FINAL IF THE GOVERNMENT APPOINTEE DOES NOT VETO THEM WITHIN 15 DAYS OR IF HIS VETO IS NOT CONFIRMED BY THE MINISTER FOR INDUSTRY WITHIN ONE MONTH . DEFI IS SUBJECT TO THE ECONOMIC AND FINANCIAL SUPERVISION OF THE STATE AND IS REQUIRED TO DRAW UP AN ANNUAL FORWARD ESTIMATE OF ITS INCOME AND EXPENDITURE AND FORWARD IT TO THE GOVERNMENT FOR APPROVAL .
9 THE DOCUMENTS BEFORE THE COURT SHOW THAT ON 18 APRIL 1985 THE FRENCH GOVERNMENT FORWARDED A LETTER TO THE COMMISSION PURSUANT TO ARTICLE 93 ( 3 ) OF THE TREATY TO INFORM IT OF DEFI ' S OPERATING RULES . THE FRENCH GOVERNMENT STATED THAT IT WAS DEFI ' S INTENTION TO ALLOCATE ' A LUMP SUM OF FF 150 MILLION . . . TO AN INTEREST-RATE SUBSIDY OF SIX PERCENTAGE POINTS IN RESPECT OF COMMERCIAL BANK LOANS GRANTED IN 1985 FOR CERTAIN TYPES OF INVESTMENTS '
IN THE INDUSTRIES IN QUESTION AND THAT IT HAD INFORMED DEFI THAT IT ' WOULD GIVE ITS STATUTORY ASSENT TO A DECISION AWARDING LOANS AT A SUBSIDIZED RATE OF INTEREST ONLY AFTER NOTIFICATION OF A PLAN COMPLYING WITH THE PROVISIONS OF THE TREATY ' . THAT NOTIFICATION LED THE COMMISSION TO ADOPT DECISION 85/380 WHICH IS AT ISSUE IN THESE PROCEEDINGS .
10 THE COMMISSION CONTENDS THAT DEFI DOES NOT HAVE AN INTEREST IN BRINGING PROCEEDINGS, OR AT LEAST NOT AN INTEREST DISTINCT FROM THAT OF THE FRENCH GOVERNMENT, AND THAT THE DECISION IS THEREFORE NOT OF ' CONCERN '
TO IT WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . IN THE LAST ANALYSIS DEFI IS MERELY A CONDUIT FOR THE FRENCH STATE ' S DECISIONS ON THE ALLOCATION OF AID . IN THAT CONNECTION THE COMMISSION RELIES IN PARTICULAR ON AN ANALYSIS OF THE NATIONAL LEGISLATION UNDER WHICH DEFI WAS CREATED . IN THE COMMISSION ' S VIEW DEFI OWES ITS CREATION, OBJECTS AND POWERS TO THAT LEGISLATION, ITS PRINCIPAL RESOURCES BEING THE PARAFISCAL CHARGES IMPOSED BY THE LEGISLATION, WHILE ITS FINANCES ARE SUBJECT TO STATE CONTROL AND ITS DECISIONS ARE IN REALITY PROPOSALS WHICH BECOME LEGALLY BINDING ON THE EXPIRY OF PRESCRIBED PERIODS WITHIN WHICH THE SUPERVISORY AUTHORITIES ARE GIVEN THE OPPORTUNITY TO INTERVENE .
11 FOR THOSE SAME REASONS THE COMMISSION ALSO TAKES THE VIEW THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT DEFI HAS NO CAPACITY TO BRING PROCEEDINGS . IN ORDER TO HAVE SUCH CAPACITY FOR THE PURPOSES OF ARTICLE 173 OF THE TREATY, IT MUST HAVE A MINIMUM DEGREE OF AUTONOMY AND RESPONSIBILITY WHICH IT DOES NOT POSSESS, AT LEAST AS REGARDS AID .
12 FINALLY, THE COMMISSION, SUPPORTED ON THIS POINT BY THE INTERVENER, THE GESAMTVERBAND DER DEUTSCHEN TEXTILINDUSTRIE, ARGUES THAT THE CONTESTED DECISION IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO DEFI WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 ; NOT ONLY IS THE DECISION OF NO CONCERN WHATEVER TO DEFI BUT IT DOES NOT AFFECT DEFI BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO IT OR BY REASON OF CIRCUMSTANCES WHICH DISTINGUISH IT FROM ANY OTHER PARTY IN SUCH A WAY AS TO IDENTIFY IT INDIVIDUALLY, AS IN THE CASE OF THE PERSON TO WHOM A DECISION IS ADDRESSED, TO USE THE TERMS FIRST LAID DOWN BY THE COURT IN CASE 25/62 ( PLAUMANN V COMMISSION ( 1963 ) ECR 95 ) AND REPEATED IN SUBSEQUENT DECISIONS .
13 DEFI DENIES THAT IT IS A CONDUIT OF THE FRENCH STATE . IT STATES THAT IT IS WHOLLY INDEPENDENT OF THE FRENCH ADMINISTRATION ; IT TAKES ITS DECISIONS WITHOUT REFERENCE TO THE ADMINISTRATION AND HAS COMPLETE RESPONSIBILITY FOR THEM . ITS GOVERNING BOARD IS AT PRESENT ENTIRELY DOMINATED BY PERSONS ENGAGED IN THE INDUSTRY AND THE PRESENCE OF A GOVERNMENT APPOINTEE ON THE BOARD IS MERELY A REFLECTION OF THE FACT THAT THE STATE HAS LENT DEFI ITS SECULAR ARM FOR THE PURPOSE OF RECOVERING PARAFISCAL CHARGES . FURTHERMORE, ALTHOUGH THE FRENCH ADMINISTRATION ENJOYS A LIMITED RIGHT OF VETO OVER DEFI ' S DECISIONS, THAT RIGHT HAS NEVER BEEN EXERCISED .
14 DEFI FURTHER ARGUES THAT IT IS DIRECTLY AND INDIVIDUALLY CONCERNED BY THE DECISION . IN THE FIRST PLACE, THE DECISION PREVENTS IT FROM CARRYING OUT SOME OF THE ESSENTIAL TASKS ENTRUSTED TO IT, AND IN THE SECOND PLACE IT AFFECTS THE INDIVIDUAL INTERESTS OF A CATEGORY OF SUBJECTS WHOSE COLLECTIVE INTERESTS IT IS DEFI ' S DUTY TO PROTECT . SINCE DEFI HAS NO RIGHT TO INTERVENE IN THE PROCEEDINGS BETWEEN THE FRENCH GOVERNMENT AND THE COMMISSION, AND SINCE IT HAS NO OTHER MEANS OF REDRESS AGAINST THE CONTESTED DECISION, TO DISMISS ITS APPLICATION AS INADMISSIBLE WOULD HAVE THE EFFECT OF DEPRIVING IT OF ALL LEGAL PROTECTION .
15 ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 173 A NATURAL OR LEGAL PERSON MAY BRING AN ACTION AGAINST A DECISION ADDRESSED TO ANOTHER PERSON ONLY IF THAT DECISION IS OF DIRECT AND INDIVIDUAL CONCERN TO THE FORMER . IN VIEW OF THE FACT THAT THE CONTESTED DECISION IS ADDRESSED TO THE FRENCH REPUBLIC, THE COURT MUST CONSIDER WHETHER DEFI IS DIRECTLY AND INDIVIDUALLY CONCERNED BY THE DECISION .
16 IN THAT REGARD IT SHOULD BE NOTED THAT DEFI IS NOT THE ULTIMATE BENEFICIARY OF THE AID IN QUESTION BUT MUST PAY THE AID TO UNDERTAKINGS MAKING CERTAIN INVESTMENTS . IN SO FAR AS DEFI REPRESENTS THE INTERESTS OF THOSE TRADERS, IT MUST BE STATED THAT THE AID PLAN DOES NOT DETERMINE WHICH UNDERTAKINGS ARE TO RECEIVE AID AND THAT CONSEQUENTLY ANY UNDERTAKING WISHING TO BRING AN ACTION IN THAT CONNECTION IS NO MORE CONCERNED BY THE COMMISSION DECISION THAN ALL THE OTHER TRADERS IN THE SECTOR IN QUESTION . IN SUCH CIRCUMSTANCES THE COURT HAS MADE IT CLEAR THAT AN ASSOCIATION SET UP TO REPRESENT THE COLLECTIVE INTERESTS OF TRADERS DOES NOT HAVE A RIGHT OF ACTION ( SEE IN THE FIRST PLACE THE JUDGMENT IN JOINED CASES 16 AND 17/62 CONFEDERATION NATIONALE DES PRODUCTEURS DE FRUITS ET LEGUMES AND OTHERS V COUNCIL ( 1962 ) ECR 471 ).
17 AT THE HEARING, DEFI ARGUED THAT AS AN ORGANIZATION SUI GENERIS IT DOES NOT REPRESENT THE INTERESTS OF POSSIBLE BENEFICIARIES BUT INTERESTS PECULIAR TO ITSELF . FIRST, IT HAS AN INTEREST IN BEING ABLE TO COMPLETE THE TASKS ENTRUSTED TO IT BY THE LEGISLATION DESCRIBED ABOVE, AND SECONDLY IT HAS OF ITS OWN ACCORD SET ITSELF THE TASK OF MODERNIZING AND RESTRUCTURING THE WHOLE SECTOR, INCLUDING WEAVING, TEXTILE PRODUCTION, CLOTHING, DISTRIBUTION AND FASHION, IN ORDER TO ADAPT IT TO MARKET CONDITIONS WHICH ARE SUBJECT TO COMPETITION FROM NON-MEMBER COUNTRIES, IN PARTICULAR FROM THE FAR EAST .
18 ON THAT POINT, HOWEVER, IT MUST BE STATED THAT THE TASKS DESCRIBED IN THE LEGISLATION WERE ENTRUSTED TO DEFI BY THE FRENCH GOVERNMENT AND THAT UNDER THAT LEGISLATION THE FRENCH GOVERNMENT UNDENIABLY HAS THE POWER TO DETERMINE DEFI ' S MANAGEMENT AND POLICIES AND HENCE ALSO TO DEFINE THE INTERESTS WHICH THAT ORGANIZATION IS TO PROTECT . THUS DEFI HAS NOT SHOWN IN WHAT WAY THE INTERESTS WHICH IT DESCRIBES AS PECULIAR TO ITSELF ARE DISTINCT FROM THE FRENCH STATE ' S INTEREST IN THE MODERNIZATION AND RESTRUCTURING OF A BROAD SECTOR OF THE NATIONAL ECONOMY .
19 IT SHOULD IN ANY EVENT BE POINTED OUT THAT THE FRENCH GOVERNMENT HAS ITSELF BROUGHT AN ACTION FOR A DECLARATION THAT THE CONTESTED DECISION IS VOID AND RELIES ON EXACTLY THE SAME OBJECTIVES AS THOSE DESCRIBED BY DEFI . THAT FACT DEMONSTRATES THAT DEFI CANNOT CLAIM THAT IT IS DENIED LEGAL PROTECTION FOR THE INTERESTS IT IS SEEKING TO DEFEND .
20 IT MUST BE CONCLUDED FROM THE FOREGOING CONSIDERATIONS THAT DEFI HAS NOT SHOWN THAT IT FULFILS THE CONDITIONS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY . THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .
Decision on costs
COSTS
21 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENER, THE GESAMTVERBAND DER DEUTSCHEN TEXTILINDUSTRIE .
Operative part
ON THOSE GROUNDS,
THE COURT ( SIXTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE ;
( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENER, THE GESAMTVERBAND DER DEUTSCHEN TEXTILINDUSTRIE .