61980C0188
OPINION OF MR ADVOCATE GENERAL
REISCHL
DELIVERED ON 17 JUNE 1982 (
1
)
Mr President,
Members of the Court,
In the joined cases which form the subject of this opinion, the validity of Comission Directive No 80/723/EEĆ of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (Official Journal, 1980, L 195, p. 35) is to be determined. The contents of this directive, which is based on the EEC Treaty and in particular Article 90 (3) thereof, may be outlined as follows:
Under Article 1, transparency is to be ensured by the Member States so that public funds made available directly or through the intermediary of public undertakings or financial institutions and the use to which those funds are actually put emerge clearly. According to Article 3, the transparency of financial relations which is to be ensured is to apply in particular to the setting-off of operating losses, the provision of capital, nonrefundable grants, or loans on privileged terms, the granting of financial advantages by forgoing profits or the recovery of sums due, the forgoing of a normal return on public funds used, and also compensation for financial burdens imposed by the public authorities. Article 5 provides that the Member States are to keep the information concerning the financial relations in question at the disposal of the Commission for five years and are to supply it to it on request. Article 2 makes it clear that for the purpose of this directive “public authorities” are to be taken to mean anv undertaking over which the public authorities mav exercise directly or indirectly a dominant influence bv virtue oí their ownership of it, their financial participation therein, or the rules which govern it. Such a dominant influence is to be presumed when these authorities directly or indirectlv in relation to an undertaking hold lhe maior pan of the undertaking's subscribed capitai, or control the majority of the votes attaching to shares issued bv the undertakings, or can appoint more than half of the members of the undertaking's administrative, managerial or supervisory body. According to Article 4, the directive is not to apply, first, to smaller undertakings and undertakings for the supply of services, whose activities are not liable to affect trade within the Community to an appreciable extent, secondly, to public credit institutions and, finally, to those undertakings which carry on activities in the area of water and energy, including in the case of nuclear energy the production and enrichment of uranium, the reprocessing of irradiated fuels and the preparation of materials containing plutonium, as well as in the areas of posts and telecommunications and transport. Finally under Article 8 the directive was to be incorporated into national law by 31 December 1981.
Before that date the French Republic, the Italian Republic and the United Kingdom each brought an action against the Commission under Article 1973 of the EEC Treaty, by applications which were received at the Court Registry on 16, 18 and 19 September 1980 respectively, in which they claimed that the abovementioned directive should be declared void. In addition, the French Republic, as intervener, supported the applications of the Italian Republic and of the United Kingdom. The Federal Republic of Germany and the Kingdom of the Netherlands were admitted as interveners in support of the Commission, which claimed that the applications should be dismissed as unfounded.
My views on these applications, which are grounded on lack of competence, infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers, are as follows:
1.
The applicants base their applications first and chiefly on the ground of the lack of competence of the Commission, which in their view was not authorized to adopt a directive containing such provisions. Essentially in agreement, they state that Article 90 (3) of the EEC Treaty confers a power on the Commission as “guardian of the Treaty” only to take action against particular Member States in an individual case, but does not provide a general legislative competence to create new obligations for Member States which are not laid down in the Treaty. The subject-matter of the directive is, moreover, so closely connected with the field of application of Articles 92 and 93 of the EEC Treaty that the Council alone, under Article 94 of the EEC Treaty, had power to legislate. However, in so far as the Commission needed information going beyond the field of State aids, Article 213 of the EEC Treaty, which also requires the Council's participation, would, in the applicants' opinion, provide the necessary legal basis.
In examining the first argument, which is considered with the procedural question relating to the scope of the lawmaking powers conferred on the Commission by Article 90 (3), it is necessary first to recall the wording of that provision, which reads as follows:
“The Commission shall ensure the application of the provisions of this article and shall, where necessary, address appropriate directives or decisions to Member States”.
Bearing in mind the principle of the division of powers which according to Article 4 of the EEC Treaty applies to the Community, the authors of the Treaty have clearly stated that the Commission, on the one hand, is appointed with exclusive power to ensure that Article 90 of the EEC Treaty is applied and, on the other, may in fulfilling that task address to the Member States the legal acts mentioned therein under its inherent powers. The provision in question is thus a lex specialis of Article 155 of the EEC Treaty, which provides inter alia that the Commission is to ensure that the provisions of the Treaty are applied and has its own power of decision in the manner provided for in the Treaty; it is generally recognized that this means decisions in the non-technical sense. Further examples of the Commission's exclusive powers to adopt legal acts in the field of the application of the rules on competition are also to be found in Anieles 80, 89 and 93 of the EEC Treaty.
By contrast, as the applicants correctly point out and as can also be shown by the example of the rules on competition — Articles 87 and 94 of the EEC Treaty are named here — the power to make implementing regulations to supplement and give effect to the Treaty rules is generally conferred on the Council.
However, contrary to the view taken by the United Kingdom and Italy, from that distinction between measures which serve to provide for the application of the provisions of the Treaty and those which can be issued for their implementation, it cannot be concluded that, in fulfilling its supervisory task, the Commission can issue no legal measures of general applicability but only measures dealing with particular cases.
Even though, as the abovementioned examples show, this may be the general rule, the wording of Article 90 (3) none the less indicates that in carrying out its task the Commission may choose between the instrument of the directive and that of the decision. In this regard, it is in particular impossible to agree with the United Kingdom, which seeks to distinguish between directives containing general legislative provisions and specific administrative directives, and consequently considers that in the framework of Article 90 the Commission is authorized to issue measures only of the latter kind.
Such a distinction is also not to be inferred, as the United Kingdom maintains, from the specific terms used in the Treaty, according to whether the term “shall issue” or instead “shall address” is used. Against this is the wording of the first paragraph of Article 189 of the EEC Treaty, whereby “in order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions...”. The expression “shall address” is, on the other hand, as the third paragraph of Article 189 of the EEC Treaty shows, intended merely to make it clear that a directive can be addressed only to the Member States. The competent organs can thereby choose, as has been clearly established, between issuing “individual” directives, addressed to specific individual Member States, or “general” directives, intended for all Member States equally. Consequently, where in the second paragraph of Article 97 of the EEC Treaty, which presupposes an infringement of specific tax provisions, it is logically stated that the Commission is to address appropriate directives or decisions to the State concerned, it cannot, as the United Kingdom maintains, be inferred from that phraseology that the expression “shall address” always authorizes only the adoption of “individual” directives.
The power conferred on the Commission to issue general directives, which are binding on all Member States equally, does not, as the United Kingdom maintains, conflict with the division of powers between the Council and the Commission provided for in the Treaty. Quite apan from the fact that Montesquieu's principle is in any event only partially put into effect in the Community, there can be no question of the Commission having only executive and the Council only legislative powers of decision. Although that may be the rule, there are in addition to the provision concerned a number of other articles, such as Article 13 (2), Article 33 (7), and the second paragraph of Article 97 of the EEC Treaty, in which inherent powers are also conferred on the Commission to issue directives, and in Article 48 (3) (d) even to issue implementing regulations. Even if one accepts the starting point of the United Kingdom, that those are for the most part exceptions, limited in time and of a transitional nature, to the legislative powers which in principle belong to the Council, the provision in question in Article 90 (3) of the EEC Treaty must also be regarded at least as an exception provided for expressis verbis, the validity of which is subject to no limitation in time.
The “balance of power” fundamental to the EEC Treaty is clearly taken into account by the fact that the Commission's lawmaking power is limited to “the application of the provisions of this article”. It is thereby ensured that in the context of its supervisory functions, the Commission may enact only such measures as are of an implementing or technical nature. That may also be the reason why, in providing a lawmaking power of this nature which is different from the competence which is as a rule conferred on the Council to issue regulations implementing the articles of the Treaty, the authors of the Treaty did not include the usual procedural safeguards, such as the separate right to initiate measures and consulting the European Parliament or the Economic and Social Committee.
As the Commission consequently has inherent powers to issue such directives and is also not obliged to obtain the agreement of the said institutions or even of the Member States, it therefore cannot be reproached where procedure is concerned for having failed to pay sufficient regard to objections made by
some Member States at the suge of the preparatory work concerning the issue of the directive.
2.
Moreover, on the requirements as to the contents which may be made of a directive based on Article 90 (J) of the EEC Treaty, the applicants take the view that on the basis of that provision the Commission can react only to repress something actually done by the Member States, but cannot prescribe abstract measures of a preventive nature.
As can be shown from the wording of Article 90 of the EEC Treaty, however, that argument is also unacceptable. Thus in Article 90 (3), it is provided that the Commission is to ensure “the application of the provisions of this article”. However, Article 90 (1) of the EEC Treaty, which is relevant in dealing with this case and the application of the provisions of which the Commission is to ensure, reads as follows:
“In the case of public undertakings... Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 7 and Articles 85 to 94”.
Thus it is the task of the Commission, on the one hand, to ensure that in the case of the said undertakings the Member States do not maintain in force any measure which is incompatible with the EEC Treaty, which means that it must ensure that measures already in existence are abolished. On the other hand, it has to ensure that the Member States do not enact any like measure, that is to say do not adopt such a measure in future. Thus in Article 90 (3) the task is clearly conferred on the Commission of taking not only reactive but also preventive action, in order to prevent infringements of the Treaty.
In this connection, as the Commission correctly points out, it is also significant that action by the Commission on the basis of Article 90 (3) of the EEC Treaty certainly does not, as is the case in Articles 89 and 93 (2) and the second paragraph of Article 97 of the EEC Treaty, for example, depend on the existence of an infringement of specific provisions of the Treaty. As in the latter provisions infringement of the Treaty by the Member States constitutes a precondition for action by the Commission, the instrument of the decision, therefore the issue of individual acts, is also in the first instance provided for there. Nevertheless, although the second paragraph of Article 97 provides for the issue of appropriate directives or decisions, it is also expressly stated there that those measures are to be addressed “to the State concerned”. Article 90 (3), on the other hand, provides a choice between directives and decisions, which are quite generally to be addressed “to Member States”, and by such wording takes account of the possible issue of preventive measures containing general abstract provisions.
Moreover, there is further evidence against a mere repressive action in the individual case in the fact that Article 90 (3) of the EEC Treaty is not intended to replace the procedure provided for in Article 169 of the EEC Treaty in the event of an infringement of the Treaty, but that it is instead the purpose of that provision by providing clear procedural rules to avoid the necessity of initiating such a procedure in connection with an infringement of the Treaty. To this extent it is again necessary to agree with the Commission, that the issue of directives which are based on Article 93 of the EEC Treaty is to be regarded as the less stringent instrument compared with the obligations incumbent on the Commission under Article 169 of the Treaty.
A comparison of Article 90 (3) of the EEC Treaty with Article 169 of the EEC Treaty thus shows that a distinction must be made between that which the Commission must do, once it has ascertained the existence of action infringing the Treaty, and that which it has to do in order to prevent such an infringement of the Treaty occurring. In the latter case the Commission must, on a meaningful interpretation of Article 90, at least be entitled to the power to take those measures which, as the Coun of Justice stated in its judgment in the Camera Care Case (
2
) on a similar problem “are indispensable for the effective exercise of its functions”.
3.
Furthermore it then remains to be determined how the obligation incumbent on the Commission under Article 90 (3) of the EEC Treaty, inter alia to ensure the application of the provisions of Article 90 (1), is constituted in detail. For that purpose it is necessary to submit to closer investigation the content and scope of Article 90 (1) of the EEC Treaty, in view of its position in the Treaty system as a whole.
That provision regulates the position of public undertakings and thereby the economic activity of public authorities in the common market. As is admitted by all the parties to the proceedings, its function cannot be considered without reference to Article 222 of the Treaty, which provides that the Treaty is in no way to prejudice the rules in Member States governing the system of property ownership. Accordingly the Member States, in which there are different conceptions of the role of the public economy, are also in principle free to decide on the position and organization of their public undertakings. On the other hand, that freedom of organization must be subject to the limitation that it may not be used to call in question if e foundations of the Treaty, in particular the principle that goods shall move freely and competition shall not be distorted. That means, however, that in principle all rules in the Treaty must apply equally to all undertakings, both private and public, in all Member States and that in that respect public undertakings in the individual Member States may not be given preferential treatment.
As has been correctly pointed out by the [German] Federal Government in particular, such an obligation on the Member States to treat private and public undertakings on the same footing follows from Article 5 of the EEC Treaty itself. If Article 90 (1) of the Treaty, which, as the Court of Justice also indicated in the INNO case, (
3
) is in this respect to be regarded as a lex specialis of Article 5 of the EEC Treaty, expressly emphasizes that obligation once again, it was thereby intended to give expression to the fact that the relationship between the public authority and public undertakings is of a particular kind, which differs in many respects from the existing relationship between the Sute and private undertakings. Thus it cannot be denied that the agents of public authority are in a position to influence public undertakings differently from private undertakings and as the result of that special relationship with the authorities there is in particular danger of support for the public undertakings which favours the fatter in competition with private undertakings. That might in addition be the reason why, on the one hand, the provision is systematically inserted in the chapter of the Treaty which is devoted to the common rules on the Community policy in the field of competition, and, on the other, reference is expressly made in the provision itself not only to the other provisions of the Treaty but in particular to respect for the rules on competition, including the provisions of Articles 92 to 94 of the EEC Treaty on State aids.
That means, however, that the rules on Sute aids, as the Court of Justice has already shown in the Steinike and Weinlig case, (
4
) are in principle to be applied to both public and private undertakings. In that connection Article 92 of the EEC Treaty determines which aids are or may be considered to be compatible with the common market. The Commission is entrusted under Article 93 (1) of the Treaty with the task of keeping under review existing systems of aid and under Article 93 (3) of exercising a preventive control over proposed aid. Article 93 (2) then lays down inrer alia the examination procedure to be adopted by the Commission. Finally, Article 94 confers on the Council the power to “make anyappropriate regulations for the appiication of Articles 92 and 93 and... in particular [to] determine the conditions in which Articles 93 (3) shall apply and the categories of aid exempted from this procedure”.
If, against that background, Article 90 (3) confers on the Commission a special legislative competence that can, if the provision is to have any meaning at all, mean only that on account of the special features of State aids paid to public undertakings, the Commission is to have a power which goes beyond the competence conferred on it in Article 93 and is not identical with the power granted to the Council under Article 94 of the Treaty. From that power it follows that, in view of the Member States' special relations with public undertakings, it is incumbent on the Commission, if required, to give practical effect to the Member States' specific obligations arising out of Article 90 (1) of the Treaty with regard to State aids. In this respect, as the Commission correctly points out, Article 90 is complementary and subsidiary in character in relation to the provisions of Article 92 et seq. of the Treaty.
In considering the discretion conferred on the Commission by Article 90 (3) of the Treaty, it must in addition not be overlooked that not only is Article 222 of the Treaty limited by Article 9C, but also that Article 222 of the Treaty places limits on the possibility based on Article 90 of the Treaty for the Commission to exert an influence on the internal structure of public undertakings, inasmuch as the public authorities' freedom to engage in economic activity may not be restricted to a greater extent than that provided for in the Treaty.
Such a narrowly-defined competence of the Commission within the framework of Article 90 (3) guarantees that, contrary to the fears expressed by the applicants, the Commission may not claim a general power to lay down special status for public undertakings, but may take action only if, on the one hand, apart from the other provisions of the Treaty, it is to be ensured that the Member States or other agents of public authority do not use their special position in relation to public undertakings to induce the latter to infringe the Treaty and, on the other, it is guaranteed that the economic activity of public undertakings will not be thereby limited further than is provided for under the Treaty.
4.
Therefore it is in addition above all necessary to investigate the question whether other special Treaty rules preclude the issue of a directive of this kind by the Commission. Essentially in agreement on this point, the applicants argue that on account of the close connection between the provisions of the directive and State aids, only the Council is empowered to issue such rules under Article 94 of the Treaty. In the view of the Commission and also of the [German] Federal Government, on the other hand, the subject-matter of the directive does not fall within the field of application of Articles 92 and 93 of the Treaty. Consequently the Council is not competent to issue such a rule, as its power under Article 94 cannot go beyond the provisions of the said article. In the view of the Kingdom of the Netherlands also, the Commission has such a competence, without prejudice to the question whether the Council might possibly at the same time have been able to issue rules on the basis of Article 94 of the Treaty.
In considering this dispute, it must be conceded to the applicants that the question which aids are or may be compatible with the Treaty, by what procedure the Commission may investigate them and under what conditions the Council can specify an aid as compatible with the common market, can be answered only on the basis of Anieles 92 and 93. However, those provisions make no mention of the way in which, in carrying out its tasks, the Commission can learn of the existence of aids granted or financial relationships which are possibly to be classified as aid. The purpose of this directive, however, is precisely to fill that gap, particularly with regard to the financial relations between the Member States and their public undertakings. In my view, at the same time it cannot be denied that there is a connection with the provisions on State aids, in so far as the directive is intended exclusively to reveal the financial relations which make it possible for the Commission to fulfil its tasks under Article 93 of the Treaty. That is expressed in the third and fifth recitals in the preamble to the directive, where it is stated that “the Treatyrequires the Commission to ensure that Member States do not grant undertakings, public or private, aids incompatible with the common market”, and that “a fair and effective application of the aid rules in the Treaty to both public and private undertakings will be possible only if these financial relations are made transparent”. The reason why the directive's field of application extends only to public undertakings is then given in the fourth and sixth recitals in the preamble, as it is there stated that “the complexity of the financial relations between national public authorities and public undertakings tends to hinder the performance of this duty” and that “such transparency applied to public undertakings should enable a clear distinction to be made between the role of the State as public authority and its role as proprietor”.
Therefore the Member States are required in Article 5 of the directive to keep information concerning the financial relations referred to in Article 1 at the disposal of the Commission for five years and supply such information to it on request, so that under the procedure provided for in Anieles 92 and 93 of the Treaty the latter can form an opinion as to whether or not there is an aid compatible with the common market. Consequently it is clear that the directive does not, as the Italian Government panicularly fears, interfere with the procedural guarantees provided for in Article 93 of the Treaty. As for the rest, that is expressly confirmed in the thineenth recital in the preamble as it is clearly stated that the directive “is without prejudice to other provisions of the Treatv, notablv Articles 90 (2), 93 and 223”.
Furthermore, it cannot be denied that from the statement of the financial relations which must be kept at the Commission's disposal it does not automaticallv follow that those are aids within the meaning of Article 92, as that information must necessarily include more than aids. Consequently it must be concluded with the Commission and those intervening in its support that the directive neither provides a definition of aids nor interferes with the procedure for the control of aids òr determines its course. As must be admitted, it is the Council which would if necessary be competent to issue such measures, supplementing the provisions in question, on the basis of Article 94 of the Treaty.
Indeed, that article gives to the Council the power to make regulations for the application of Articles 92 and 94, but does not state, as the Commission correctly remarks, that only the Council can regulate all questions which are in some way connected with State aids and go beyond the field of application of Anieles 92 and 93. As I have already pointed out. if that view were supported, the rules in Article 90 of the Treatywould have no meaning in so far as thev relate to State aids. The reference in Article 90 (3) to the entire aniele as well as the express mention of Anieles 92 to 94 in Article 90 (lì shows, however, precisely that questions which are connected with aids granted to public undenakings and which go beyond the rules contained in Amele 92 et seq. of the Treaty may be regulated by the Commission within the framework of the discretion which I have described.
However, the present directive is not. as its contents show, concerned with aids, but with the special supplementary problem that in the Member States' relationship with public undertakings, in particular as a result of the public authorities' proprietorial capacity, aids mav take a particular form and thereby be more difficult for the Commission to recognize. In this respect particular importance is to be attributed to the fact that grants to public undertakings do not, like financial aid by private companies to an undertaking, come from the private property of those companies, which is subject to commercial risk in every respect, but rather directiv or indirectly from the resources of the State budget. For that reason the danger cannot be discounted that in the use of those funds commercial considerations which a businessman would take into account do not always come into play. Although, as the French Government argues, financial transactions which are to be regarded as aids may also take place within private concerns, it is nevertheless undeniable that on the grounds of the normal desire for profit and the limitation of private resources such financial aid must be more limited both in time and extent than State allocations. In addition it is often particularly difficult in the case of public undertakings to distinguish between economic activity intended for profit and proceedings which fall under Article 92 of the Treatv. That is particularly true where it is a question of drawing a line between proprietory investments, increases in capital or offsetting losses and State support on the grounds of economic or social policy. Not least, because of the close link between the public authority and public undertakings, grants or other advantages which must be considered to be aids, can be given in forms which, if they can be recognized at all, are difficult for outsiders to identify.
In this respect, also, I am unable to agree with the French and Italian Governments, which, with reference to the legal separation which they have between public and private undertakings, on the one hand, and the State, on the other, claim that the State's financial transactions with public undertakings could always be discovered from the laws giving effect to the budget, balance sheets, annual financial statements or other publications. It seems to me that there is evidence against that argument in the very fact that aids can appear in the most varied forms and do not necessarily have to be public, either because, as a result of the differences of opinion existing in the different Member States as to the role of public undertakings, they are not regarded as subventions, or because they do not amount to direct financing. One example which may be mentioned here is the possibility of distorting competition by granting credit at favourable rates of interest through credit institutions which are supported by the State but governed by private law.
Those special problems, which exist in relation to the financial relations between the Member States and their public undertakings and which make the Commission's supervisory task considerably more difficult or even impossible, therefore justify the issue by the Commission of rules of this nature, based on Article 90 (3), which leave the substantive provisions of Article 92 et seq. of the Treaty unaffected and only create the
technical preconditions for it to carry out its obligation. That is all the more valid when they could also require the same information as is required by that directive through individual decisions and in the form of an abstract list of questions.
In this connection I do not consider it necessary to settle the question whether the Council, on the basis of Article 94, could not also issue corresponding rules by a way of “appropriate regulations for the application of Articles 92 and 93”. Even if that possibility is supported on the basis of an “effet utile” interpretation of Article 94 the Commission's special powers under Article 90 of the Treaty are not thereby excluded. If in the sphere of the application of the provisions of that article legal measures are issued from the nature of things there may be overlapping with the Council's jurisdiction to issue implementing regulations in accordance with Article 94, without there being any possibility of concurrent competence between the Commission and the Council in the true sense. Furthermore, as the Commission correctly remarks, such a possibility does not lead to the danger that there will be two different sets of rules, as according to Article 94 the Council may make rules only on a proposal from the Commission, and in formulating its proposals the latter will be able to take the existing position into account.
5.
Contrary to the applicants' opinion, it is not possible either to refer the Commission within the framework of the performance of its supervisory function under Article 90 of the Treaty to Article 212 of the Treaty, which provides that the Commission may collect any information and carry out any checks required for the performance of the tasks entrusted to it within the limits and under conditions to be laid down by the Council in accordance with the provisions of the Treaty. Even on the grounds of the general logic on which the Treaty is based, that provision cannot be applied to requests for information which the Commission makes to Member States within the framework of its powers and which the latter must answer properly and fully on account of the duty to cooperate, incumbent upon them under Article 5 of the Treaty. It would be simply absurd if the Commission could not in fulfilling its task under the Treaty obtain necessary information from the Member States without the cooperation of the Council. Consequently the purpose of that provision cannot be to confer upon the Commission a right to information from the Member States which is dependent upon actions by the Council, but it can be intended only to regulate information from undertakings and other third parties, which, unlike the Member States, are not subject to the duties resulting from Article 5.
To conclude the question of how far the Commission's competence is excluded by other provisions of the Treaty, as Article 90 (3) expressly confers on the Commission the powers which it requires in order to carry out its tasks, there is also no need to have recourse to the powers which the Council possesses under Article 235 of the EEC Treaty.
6.
As it must thus be accepted that the Commission can in principle require by means of a directive the disclosure of the financial relations between public authorities and public undertakings, it still remains hereinafter to examine whether in the arrangement of the content of the directive it has misused its powers or infringed other principles in the Treaty.
The French and Italian Governments assert that the directive creates new obligations for the Member States, which go beyond the duty to cooperate laid down in Article 5 of the Treaty. In particular mention must be made here of the substantive duty to inform the Commission, failure to comply with which may lead to the procedure under Article 169 of the Treaty.
As has already been stated, however, the directive is intended merely to ensure the provision of material which puts the Commission in a position to undertake an examination in an individual case, in accordance with Article 92 et seq. Thus the Commission is merely to be supplied upon request with information concerning facts which the Member States in any event have at their disposal and which, according to Article 6 of the directive, is in principle also not allowed to be passed on. The examples set out in Article 3 of the directive also cover only those financial relations which are to be regarded as measures within the meaning of Article 90 (1) of the Treaty. If the provision is to fulfil its purpose at all, such measures must in principle be regarded as including any application of funds or any grant of monetary advantages to public undertakings by the agent of the public authority, that is to say any action or failure to act in the financial sphere.
Consequently the Member States must take into account the fact that, in fulfilling its supervisory duty, the Commission can request the disclosure of such “measures”. By reason of Article 5 of the EEC Treaty the Commission's duty to keep those measures under review entails a duty on the pan of the Member States to inform the Commission of those “measures” upon request, which in turn means that the relevant data must be kept at hand. Consequently the directive creates no new duties for the Member Stales, but contains only such requirements as would equally have to be complied with in a factual examination of ad hoc questions. In this regard it is irrelevant whether the questions are addressed to particular Member States in the form of individual decisions or to all Member States in the form of a directive.
7.
Against the directive's validity it is further argued that it was not needed and that in any event it goes beyond what is necessary in its requirements. However, contrary to be view put foward in particular by the French Government, Article 90 (3) does not pursue the aim of conferring on the Commission merely a subsidiary competence in the event of the Council's not being competent, the element “where necessary” can mean only that on account of the complex relations between the Member States and their public undertakings, the Commission is to be given a discretion in the fulfilment of the tasks conferred upon it to judge whether or not an action is necessary.
I cannot accept that, by the issue of the directive concerned, the Commission has exceeded that discretion, the limits of which must be wide as a result of the complex economic facts to be assessed. For the fulfilment of the tasks conferred upon it under Article 90 (3) of the Treaty — under the second sentence of Article 5 (1) the Member States have to facilitate the achievement of the Commission's tasks — the Commission is required to obtain knowledge of the financial relations existing between the public authorities and public undertakings. Therefore such knowledge is already necessary, because it cannot be left to the Member States to decide whether or not an aid exists in an individual case, but also because that question must be decided on a Community level uniformly for all Member States by the Commission and m the List analysis by the Court of Justice. As the Commission rightly emphasizes, in order to distinguish between profitable activity on the part of undertakings and their agents and those transactions which fall within Article 92 et seq., the spectrum of those financial relations must be spread as wide as possible. While the directive merely designates those situations in which the possibility may not be ruled out that at least in a number of cases aids exist which are incompatible with the common market, it requires, however, only the provision of factual material which is necessary to enable the Commission to carry out the necessary control.
In this connection it must also be emphasized that, contrary to the applicant's claim, the directive does not prescribe the systematic provision of information to the Commission, but merely provides an additional obligation for five years to provide information upon request. Such a duty to keep records, which is to ensure that financial relations may be reconstructed, cannot be regarded as out of proportion to the aim which is pursued. Furthermore it does not, as the French Government believes, also lead to uncertainty as to the future position concerning important investments and financial operations, since as the Commission correctly remarks, the directive as such contains no rules on the compatibility or incompatibility of such transactions with the common market. Should any Member Sute be in doubt over the legal availability of such transactions, it can by way of preventive action notify the relevant measure at any time so that it may reviewed according to the procedure provided for in Article 93 of the Treaty.
Furthermore, a procedural consideration also supports the necessity for the directive. As can be inferred from the judgments of the Court of Justice in the cases of Lorenz v Federal Republic of Germany (
5
) and Italy v Commission (
6
), the grant of aids of which the Commission is not informed for its examination in accordance with Article 93 (3) is forbidden. If the Member States do not perform the duty incumbent on them to inform the Commission, the later can therefore initiate the procedure under Article 169 of the Treaty for infringement of the Treaty. Such procedure, the aim of which is not to determine the compatibility or incompatibility of an aid with the common market within the meaning of Article 92, but is intended merely to guarantee the functioning of Article 93 of the Treaty, for its pan presupposes that the Commission is aware of the existence of which it has not been notified. The present directive provides for the acquisition of such information, as it provides that information on the facts named therein — unlike the French Government. I am unable to discover any value-iudgments therein — is to be kept at hand and disclosed under cenain conditions. Consequently, such rules do not exceed the limits of what is proportionate and necessary m order to attain the desired aim.
8.
From the above, moreover, it follows that the criticism that the list of financial relations arising out of Anieles 1 and 3 of the directive without being exhaustive clearly exceeds the limits of the concept of aid is not valid. In assessing that allegation is must also be remembered that the purpose of the directive does not consist in enumerating capital movements or even defining groups of aids which are incompatible with the common market. However, so that the Commission will be in a position to form an opinion thereon at a later stage, it must also be entitled to a margin of discretion to decide what paniculars it considers necessary for the fulfilment of its tasks. In determining the limits of the discretion, however account must be taken of the fact that the concept of “aid”, as the phrase used in Article 92 of the Treaty “aid... in any form whatsoever” shows, must be interpreted broadly, so as to include any grant or advantage from the public authorities which is capable of distoning conditions of competition. However, such a range of possible aids inevitably requires that the series of financial relations, which is to provide the basis for an examination as to whether or not an aid is acceptable must necessarily also be wide.
9.
Finally it is also clear that in delimiting the directive's field of application the Commission must have the power to define concepts such as “public authorities” and “public undertakings”. At the same time, in view of the objective of Article 90 (1) of the Treaty and of the different structures in the Member States, exception may not be taken to the fact that, for the sake of better understanding of Sute activity, the directive refers to “public authorities” instead of “Member State” and thereby includes both the Sute and also regional or local authorities.
The criticisms made in particular by the French but also by the Italian Government are further directed against the definition of public undertaking. Here it is alleged that the uniform concept on which the directive is based does not do justice to the different ideas of the public economy existing in the individual Member States envisaged in Article 90 of the Treaty. As the directive does not concentrate on an undertaking's public function or arrangement of duties, but only on the direct or indirect dominant influence of public authorities, it subjects Article 90 to a serious change, in infringement of the Treaty.
So far as that allegation by the applicants is concerned, it must be conceded that, setting out from the different views prevailing in the Member States on the position, value and necessity of public undertakings, the authors of the Treaty deliberately refrained from defining that concept more precisely. Such an omission cannot, however, obscure the fact that the term used in Article 90 (1) of the Treaty is a concept of Community taw and may therefore only be given a uniform interpretation for all Member States, on the basis of the purpose of that provision. The aim of Article 90 (1) of the Treaty is, however, as we have seen, to prevent the influence of public authorities in relation to the functioning of the common market from being misused for the purposes of inter alia hidden discrimination and distortion of competition. In principle, however, such a danger always exists if the Member Sutes control certain economic units beyond general legal ties, irrespective of whether that influence is to be ascribed to relations governed by public or private law. So if, in order to achieve the aim Eursued by the directive, the Commission as focused in the definition of public undertakings on the public authorities' dominant influence, more precisely described in the directive, on economic undertakings this fact cannot give rise to any objection nor does it result in any alteration to the provisions of Article 90 (1) of the Treaty. Again, contrary to the French Government's view, that interpretation is not called in question in particular by the judgment by the Court of Justice in the case of B.R.T. v SABAM (
7
) which, unlike this case, concerned inter alia the interpretation of the concept in Article 90 (2) of “undertakings entrusted with the operation of services of general economic interest”.
Finally it is also proper, if, having regard to the objective of Article 90 (1) of the Treatv, the Commission wishes to allow the direct influence of public authorities to be sufficient to bring a public undertaking within the scope of the directive, as, in the final analysis, account is thereby taken only of the fact that according to Article 90 (1) indirect measures of aid in which other intermediate stages are introduced also have to cease.
10.
As it is certain that treating public undertakings differently from private undertakings with regard to the disclosure of financial relations is objectively justified, I can also deal shortly with the funher objection raised by the French and Italian Governments, that the directive results in discrimination against public undertakings. Together with the Commission and those supporting it, I must point out in this connection that the directive, which is addressed to the Member States, can create obligations only for the latter and not for public undertakings. Futhermore, it is clear that, if the Member States exercise an appropriate form of supervision over public undertakings, there is as a rule also no reason why the obligations concerned should be transferred to those undertakings.
However, even if it is accepted that in many cases those obligations are nevertheless in the final analysis to be borne by public undertakings, there are in any event, as has already been stated, such fundamental differences between State grants to public undertakings and those to private undertakings, that differential treatment of the two situations is objectively justified. That is further underlined by the fact that, in the relations between the Member States and public authorities, inter alia with regard to the implementation of the provisions on State aids, as Article 90 of the Treaty itself shows, the authors of the Treaty saw a special problem which was to justify a difference in treatment. The directive issued on the basis of Article 90 (3) therefore also does not constitute discrimination against public undertakings, but on the contrary seeks to ensure equal treatment of public and private undertakings on account of the danger of distortion of competition.
Contrary to the French Government's view, there is also no discrimination against public undertakings as opposed to private undertakings, in so far as they are not required to disclose their “inner life” but only to keep to hand those facts which would in any event be disclosed in an actual investigation.
In this connection I am also unable to agree with the Italian Government, which takes the view that Article 4 of the directive infringes the principle embodied in Article 90 (1) of the Treaty, that all public undertakings should be treated equally, in so far as it excluded from the requirement of transparency the public undertakings named therein without an adequate statement of reasons. If, however, the Commission is entitled to a discretion to decide what measures are appropriate for the fulfilment of its tasks, it must also be permitted to exclude certain undertakings from the directive's field of application in so far as that is objectively justified.
An appropriate objective justification for the exclusion of certain public sectors from the application of the directive is, however, to be found in the twelfth recital in the preamble, which expressly states that certain undertakings should be excluded from the application of the directive by virtue either of the nature of their activities or of the size of their turnover.
That is to apply to certain sectors, which lie outside the sphere of competition, that is to say, the public service undertakings named in Article 4 (a) of the directive, which are not liable to affect trade between Member States to an appreciable extent. In addition the directive is not to apply to those sectors “which are already covered by specific Community measures which ensure adequate transparency”, which, according to the information provided by the Commission, in particular covers the railways and domestic air transport. According to the recitals in the preamble, the directive is also not to apply to “public undertakings belonging to sectors of activity for which distinct provision should be made”, which include the undertakings named in Article 4 (b), carrying on activities in the areas of energy, posts and telecommunications, the remaining transport undertakings and also public credit institutions. Finally, undertakings “whose business is not conducted on such a scale as to justify the administration burden of ensuring transparency” are to be taken as meaning the public undertakings named under Article 4 (d). As different treatment seems justified on account of the special features of those undertakings, their exclusion from the directive's field of application does not constitute a breach of the requirement of equality of treatment. In addition, a declaration that that provision is void would, as the Commission correctlv remarks, merely result in the extension of the directive's field of application.
11.
Lastly, with the question of the directive's field of application is also linked the final subsidiary criticism raised by the French Government to the effect that the directive, based on the EEC Treaty, is inconsistent with the principle of the functional separation of the three Communities set ont in Article 232 of the EEC Treaty, which expressly provides that the secondary legislation based on the EEC Treaty is not to affect the provisions of the Treaty establishing the European Coal and Steel Community and is not to derogate from those of the Treaty establishing the European Atomic Energy Community. From the definition of public undertakings contained in Article 2 of the directive and also from the exceptions enumerated in Article 4 thereof, it may, however, be inferred that apan from those exceptions the directive is to apply to all financial relations between Member States and public undertakings covered by the three Treaties.
Against that the Commission brings forward the fact that an express exclusion of coal and steel undertakings was unnecessary because it already resulted from Article 232 (1) of the LEĆ Treaty, in conjunction with the provisions of the ECSC Treaty on aids, that the directive was not applicable to coal and steel undertakings. On the other hand, the position of undertakings falling within the provisions of the EAEC Treaty was different. The latter in fact contains no special provisions on State aids, with the result that the general rules of Article 90 of the EEC Treaty, which must be seen in connection with Articles 92 to 94 of the EEC Treaty, are in principle also applicable to the financial relations between the Member States and the public undertakings of the European Atomic Energy Community. It was therefore necessary expressly to provide an exception for the undertakings in the nuclear sector referred to in the directive.
Even if the French Government is entitled to the view that it would have been proper in the interests of clarity in the law clearly and unequivocally to specify the directive's field of application in this respect, I agree with the Commission that that failure is not so serious as to justify a declaration that the directive is void, as the interpretation of the directive which conforms to the Treaty in any event results in its being inapplicable to the financial relations between Member States and public coal and steel undertakings. In this respect it must be borne in mind that Article 90 (1) of the EEC Treaty expressly refers to Articles 85 to 94 of the Treaty. In the ECSC Treaty, on the other hand, the question of aids is made subject to special rules in Article 4 (c), with the result that, in view of Article 232 (1) of the EEC Treaty, which provides that the latter is not to affect the provisions of the Treaty establishing the European Coal and Steel Community, Article 90 of the EEC Treaty is also incapable of furnishing a legal basis for measures which provide for the application of the rules on aid laid down in the ECSC Treaty.
In the EAEC Treaty, on the other hand, there are no rules comparable to Anieles 92 to 94 of the EEC Treaty. Consequently, as pan of the EEC Treaty which aims at total economic integration, those provisions must in principle also apply to EAEC undertakings.
On account of the connection between Articles 90 and Article 92 et seq., it is then only logical that the former provision must also be applied in the field of the EAEC Treaty. Therefore it had to be expressly provided in the directive, that the requirement of transparency was not to apply to the financial relations between the public authorities and the EAEC undertakings referred to therein.
12.
Therefore, as an examination of all the grounds raised by the applicants and by the French Government in support has revealed that there can be no objection to the legality of the directive in question, I propose that the applications should be dismissed as unfounded. As the applicants have failed in their submissions, they must also be ordered to pay the costs.
(
1
)	Translated from the German.
(
2
)	Judgment of 17 Januarv I98C in Cajc 792/79 R, Cimera Cart Ud. v Commtmon, [1980) ECR 119. at p. 131.
(
3
)	Judgment of 16 November 1977 in Cue 13/77. C.B.-INNO-BM v Vereniging van de Kleinhandelaar! in Tabak lATAB), [1977] ECR 2115
(
4
)	Judgmeni of 22 March 1977 in Case 78/76 7S/76. Striniand Weinlig v federai Republic o/Grfunv. 1997 ECR 595
(
5
)	Judgment of 11 December 1973 in Case 120/73 — Gebr. Lorenz v Feaeral Republic oi Germany and the Land Rheinland-Pfalz [1973) ECR 1471.
(
6
)	Judgement of 2 July 1974 in Case 173/73 — Republic ot Italy v Commtmon [1974] ECR 709.
(
7
)	Judgment of 21 March 1974 in Cut 127/73. Belgiicbe Radio en Televisie and Société Belge dei Auteurs, Compoíiteun et Ėdueun v SVISABAM and hlV Fontor, [1974] ECR 313.