61983C0222
OPINION OF MR ADVOCATE GENERAL LENZ
DELIVERED ON 19 JUNE 1984 (
1
)
Index
A — Facts and Issues
1. The previous history
(a) Commission Decision 257/80/ECSC
(b) Commission Decision 2320/81/ECSC
(c) Commission Decision 83/397/EEC, ECSC
(d) The position of the Grand Duchy
2. The parties' claims
(a) The applicants' claim
(b) The defendant's application for a preliminary decision
(c) The applicants' reply
B — Discussion
1. The applicability of the ECSC Treaty, in particular of Article 95 thereof
2. The admissibility of the application under the ECSC Treaty
3. The admissibility of the application under Article 173 of the EEC Treaty
(a) The expression “of direct concern”
(aa) The relevant case-law
(bb) The actual facts
(b) The expression “of individual concern”
(aa) The relevant case-law
(bb) The actual facts
(c) Complete legal protection
C — Opinion
Mr President,
Members of the Court,
A — Facts and Issues
It is necessary for -me to submit my opinion today on the admissibility of an action brought against the Commission by five Luxembourg municipalities. The action concerns Commission Decision 83/397/EEC, ECSC of 29 June 1983 (Official Journal L 227, p. 29) concerning the aids that the Luxembourg Government proposes to grant to the steel industry. In the decision the compatibility of State aids to steel undertakings with the orderly functioning of the Common Market is made conditional upon inter alia a reduction of specified steel production capacity. Steel undertakings operate in the territory of the municipalities bringing the action.
1. The previous history
The previous history of the contested decision may be summarized as follows.
a)
On 1 February 1980 the Commission adopted Decision 257/80 establishing Community rules for specific aids to the steel industry. Its basic premise was that specific aids given by the Member States were necessary in order to adapt the steel industry's production capacity to demand and to restore the industry's competitveness. The Commission based its powers on the first and second paragraphs of Article 95 of the ECSC Treaty.
Article 1 of the decision states that specific aids to the steel industry financed by the Member States or through State resources my be considered compatible with the Common Market if they satisfy the provisions of the decision and are put into effect in accordance with the procedures established therein.
Article 2 lays down the criteria which aids in support of investment must satisfy. That article refers inter alia to “restructuring effort” and “the criteria for the restructuring of the steel industry” defined by the Commission.
Article 3 defines the costs resulting from the closure of steel undertakings which are eligible for such aids.
Article 4 contains criteria for aids to facilitate the continued operation of certain undertakings. One of those criteria is that the aid forms an integral part of a restructuring programme.
Article 5 concerns emergency aids required in order to contend with acute social problems.
Finally Article 6 adds that the Commission is to be informed in sufficient time of any plans affecting aids and that the Member State concerned may put its proposed measures into effect only with the approval of and subject to any conditions laid down by the Commission.
b)
Since the crisis confronting the steel industry at that time was becoming worse and the necessary restructuring and adjustment of capacity had not yet been achieved, Decision No 2320/81 (Official Journal L 228, p. 14), which relates both to specific aids (whose main purpose is to benefit steel undertakings) and to nonspecific aids granted under general or regional aid systems and which is also based on Article 95 of the ECSC Treaty, was adopted on 7 August 1981 with the intention that it should remain in force until 31 December 1985.
Article 1 provides that all aids to the steel industry financed by Member States or through State resources may be considered compatible with the Common Market if they respect the rules set out in Articles 2 to 7 and that they may be put into effect only in accordance with the procedure established in that decision.
According to Article 2 aids are compatible with the Common Market if the recipient undertaking is engaged in the implementation of a restructuring programme which results in a reduction in production capacity; such aids were to be approved not later than 1 July 1983; essentially aid payments cannot be made after 31 December 1985.
Article 3 contains the criteria which aids in support of investment must satisfy. It refers, inter alia, to restructuring effort.
Article 4 relates to the costs resulting from the closure of steel factories which are eligible for aid.
Article 5 lays down the conditions which aids to facilitate the continued operation of certain undertakings must satisfy; they must, inter alia, form an integral part of a restructuring programme as defined in Article 2.
Article 6 provides for emergency aids required in order to contend with acute social problems.
Article 7 lays down the objectives which aids for research and development must have.
Finally Article 8 once again requires that the Commission be informed in sufficient time, that such notification be made to the Commission not later than 30 September 1982 and states that the proposed measures may be put into effect only with the approval of and subject to any conditions laid down by the Commission.
c)
As has already been stated the decision “concerning the aids that the Luxembourg Government proposes to grant to the steel industry” (Official Journal 1983, L 227, p. 29), which is the subject of this action, was adopted on 29 June 1983 in the foregoing context. The recitals in the preamble thereto describes the events preceding its adoption. They state that in January 1981 the Luxembourg Government notified the Commission of its intention to grant aids to its steel industry; after scrutiny of the aids the Commission concluded that the capacity reductions proposed were insufficient; the Luxembourg Government subsequently modified its restructuring plan and offered a bigger capacity reduction in respect of hot-rolled products; finally in July 1982 the Commission authorized the grant of part of the aids subject to certain conditions and in August 1982 the Luxembourg Government gave its agreement to those conditions.
The preamble goes on to state that in September 1982 the Luxembourg Government notified the Commission of additional aids to its steel industry; after scrutiny of the aids the Commission concluded that the revised restructuring plan did not incoporate new measures justifiying the grant of additional aids; subsequently in March 1983 the Luxembourg Government modified its notification of September 1982 and offered a further net reduction of capacity of 60000 tonnes in respect of hot-rolled products in return for a number of investment aids and aids for continued operation; however, the Commission takes the view that capacity in respect of hot-rolled products must be reduced by a further 410000 tonnes.
In relation to the operative part of the decision which, according to Article 8, is addressed to the Grand Duchy of Luxembourg, reference must first be made to Article 1 which states that the investment aids and aids for continued operation individually listed therein are compatible with the Common Market subject to the conditions and requirements set out in Articles 2 to 5 being satisfied. Article 2 provides that the recipient undertakings must carry out further capacity reductions in respect of hot-rolled products of at least 410000 tonnes in addition to the capacity reduction of 60000 tonnes already proposed, that a list of the factories to be closed, giving the closure dates, must be sent to the Commission by 31 January 1984 and that the capacity reductions must be achieved by 31 December 1985. Finally in Article 4 it is also provided that the aids may be paid only if the Commission is satisfied that the Conditions set out in Articles 2 and 3, or a sufficient part thereof, are met.
d)
On 1 July 1983 a Law concerning measures to assist the restructuring and modernization of the steel industry was passed in the Grand Duchy of Luxembourg. The Luxembourg Government is thereby empowered inter alia to pay aids to Luxembourg steel undertakings in 1983 and 1984 (Article 1), to underwrite convertible debentures or stock in the Luxembourg steel industry to a specific amount (Article 2) and to acquire shares in Sidmar SA to a specific number (Article 3). With regard to the remaining provisions of the Law, which make no reference to the closure of factories, I refer to the text printed in the Mémorial [Official Gazette] of 1 July 1983.
Reference must also be made to the fact that the Luxembourg Government informed the Commission on 27 January 1984 which plants it proposed to close. It is clear from that communication and the Commission's reply of 27 February 1984 that Arbed, pursuant to a cooperation agreement with Cockerill Sambre (to which the Belgian and Luxembourg Governments had given their assent), would close the hot-rolled wide-strip mill in Dudelange definitively at the beginning of 1985 at the latest (thereby reducing capacity by 745000 tonnes of which 250000 tonnes was to be assigned to Cockerill Sambre).
2. The views of the parties
(a)
The applicants are of the opinion that the conditions laid down with regard to closure go too far because insufficient account has been taken of the restructuring effected before 1980 and of the importance of the Luxembourg steel industry to the Luxembourg economy. They have claimed that the Court should declare void the Commission's decision of 29 June 1983 and, if necessary, declare Decision 2320/81 inapplicable.
(b)
The Commission considers the action inadmissible. It has therefore made an application under Article 91 (1) of the Rules of Procedure for a preliminary decision on its objection on the procedural issue.
It argues that the application is inadmissible under the ECSC Treaty since the applicants are obviously not undertakings within the meaning of Article 48 of that Treaty. In addition they have no right of action under the EEC Treaty, since the contested decision is not addressed to the municipalities bringing this action but, as I have already said, to the Grand Duchy of Luxembourg. In such a case however Article 173 of the EEC Treaty provides that the decision must be of direct and individual concern to the person instituting proceeding; the municpalities bringing this action have not been able to demonstrate such concern.
(c)
The applicants counter that argument in the first place by stating that the decisive law is EEC law alone, that is to say Article 173 of the EEC Treaty. The decision could in fact have been adopted solely under Article 92 et seq. of the EEC Treaty, and indeed Decisions 257/80 and 2320/81, to which regard is had in the contested decision, state that they were adopted because “the Community thus finds itself faced with a situation not specifically provided for in the Treaty”, whilst in addition it is clear that the Commission, when adopting the decision, followed the procedure laid down in Article 93 (2) of the EEC Treaty, as provided for in Article 6 of Decision 257/80 and in Article 8 of Decision 2320/81.
However, on the basis that the decision is governed simultaneously by the provisions of the ECSC Treaty and those of the EEC Treaty, it is sufficient if it may be challenged under EEC law since that part of the decision which is governed by the ECSC Treaty is inseparable from the part governed by the EEC Treaty. The applicants rely in that respect on the Court's judgment in Case 230/81 Grand Duchy of Luxembourg V European Parliament (
2
)
Nevertheless they contend that there is absolutely no doubt that the decision is of direct and individual concern to the applicants. In the first place the undertakings required to reduce their capacity have plant only in the municipalities bringing the action. Their closure or reduction therefore affects those municipalities' own interests (which are not identical to the corporate interests of their inhabitants, at the very least to the extent of reducing income from taxation. In the second place the fact that the decision is of direct concern to them cannot be called in question by reference to the fact that after the contested decision was adopted other decisions had to he adopted by the Luxembourg Government, which was merely empowered to act, and by the undertakings in question. A realistic examination of the position must take into account the fact that, as a result of clear economic pressure, all those decisions were inevitable and it might even be possible to go so far as to say that they were in fact fixed in advance, as may be seen from the fact that only a short time after the contested decision was adopted on 1 July 1983 a Luxembourg Law on the matter was passed. In the alternative the applicants also submit that there is no doubt that they have a right to bring an action under the ECSC Treaty and they rely in that respect on Article 31 thereof which states that: “The Court shall ensure that in the interpretation and application of this Treaty, and of rules laid down for the implementation thereof, the law is observed”.
B — Discussion
In my opinion the Commission has put forward the better arguments in this case and was therefore correct to raise its objection.
1.
In the first place the view taken by the applicants that Article 92 et seq. of the EEC Treaty is the sole legal basis for the contested decision cannot be accepted.
When general Decisions 257/80 and 2320/81 (which are also referred to in the contested decision as the legal basis therefor), state that the Community is faced with a situation not specifically provided for in the Treaty, they are referring to Article 95 of the ECSC Treaty which states as follows :
“In all cases not provided for in this Treaty where it becomes apparent that a decision or recommendation of the High Authority is necessary to attain, within the common market in coal and steel and in accordance with Article 5, one of the objectives of the Community set out in Articles 2, 3 and 4, the decision may be taken or the recommendation made with the unanimous assent of the Council and after the Consultative Committee has been consulted.”
The general decisions were therefore adopted on that basis; accordingly they are in all respects legal measures adopted within the framework of the ECSC Treaty. The Court has already heard that ECSC law is in fact of predominant importance in the contested decision. (That fact may be determined inter alia by reference to the information notified to the Commission; 90% of the aids referred to in the decision are specific aids and only 10% are general aids. The latter aids must be examinied, as is stated expressly in the aforementioned general decisions, in accordance with Article 67 of the ECSC Treaty in conjunction with Articles 92 and 93 of the EEC Treaty).
Therefore it is not possible to contend that EEC law alone is applicable in deciding the question of the admissibility of the action because ECSC law provides no legal basis for the contested decision.
2.
It is also completely clear that under the ECSC Treaty the municipalities which have instituted the proceedings do not have a right of action. Article 31, on which they rely, merely provides a general definition of the tasks assigned to the Court. It does not regulate questions of right of action since, as is clear from the structure of the ECSC Treaty, there is no general provision on the matter but merely the possiblitity of bringing an action in specific clearly defined cases.
If the only provision which is relevant in challenging a decision such as the one which is the subject of this action, namely Article 33 of the ECSC Treaty, is examined, it is: evident that under the second paragraph a right of action is reserved to undertakings or associations of undertakings within the meaning of Article 48; the municipalities certainly do not fall within that category. In so far as their interests are affected it must therefore be accepted that legal protection under ECSC law may be invoked only through the intermediary of the Member State to which they belong.
3.
In addition the applicants are unable to rely on the EEC Treaty since it appears that the requirement laid down in the second paragraph of Artcile 173 of the EEC Treaty that if a person wishes to challenge a decision addressed to another person that decision must be of direct and individual concern to the former, is not satisfied in this case.
(a)
With regard to the criterion of “direct... concern” it was rightly pointed out in the Opinion delivered by the Advocate General in Case 25/62 ([1963]) ECR 95 at pp. 114 and 115) (
3
) that it does not relate to the strength of the interest but must be understood in relation to the system of the Treaty and the structure of the Community order, in which the cooperation of the Member States is required in realizing specific aims.
(aa)
That does not mean, as has already been made clear in the Court's case-law, that a decision is to be regarded as not being of direct concern to a person challenging a Community provision addressed to another person merely because the provision in question still requires national measures for its implementation. It is certainly not the case, where the national authorities have no discretion but must simply execute the Community decision. (That was the attitude adopted in Joined Cases 41 to 44,70 (
4
) in relation to decisions regarding the grant of import licences in the context of protective measures; in Case 92/78 (
5
), which concerned a decision fixing minimum selling prices in the context of an invitation for tenders for the sale of beef which was of concern to all tenderers; and in Case 113/77 (
6
), which related to. a decision concerning the collection of amounts secured by way of provisional duty in the context of antidumping proceedings). It is not even the case where a Member State is granted an express authorization if it relates, as was the position in Case 62/70 (
7
) concerning goods excluded from Community treatment, to applications for import licences already made, which the appropriate authorities have made it clear would be rejected as soon as they had been granted the community authorization.
(bb)
Nevertheless it must not be overlooked that the facts of this case are completely different and that therefore the aforementioned case-law cannot be applied to them but instead their similarity to the situations in Case 123/77 (
8
) and in Joined Cases 103 to 109/78 (
9
) must be considered. (As the Court is aware, the former case concerned a restriction on imports into Italy of motor cycles originating in Japan which was to be in force for one year; the latter case concerned the authorization granted to the French Republic to reduce the basic sugar quota for undertakings established in its overseas departments.) Even on the premise that there was no doubt that the Luxembourg Government would make use of the power to grant aids to the steel industry and that the recipient undertakings would satisfy the statutory requirements (closure of factories) because they were interested in receiving the aids and were forced to comply on economic grounds, nevertheless the fact remains first that according to the contested decision the list of the factories to be closed was to be handed in only by the end of January 1984 (a period of grace of which the Luxembourg Government made full use, as has been seen) and secondly that according to Article 2 (1) of the contested decision the “justification for the aids” by means of capacity reduction might “also be contributed by other undertakings”. That was not only of theoretical significance, as is shown in this case, in which Arbed made such a contribution for the benefit of a Belgian undertaking. Therefore, at the time at which the decision was adopted, it was by no means certain which factories would be closed. (After all, as the Commission has shown, two other hot-rolled wide-strip mills in other municipalities might have been chosen.) In fact in this case another plant which was under consideration for closure was reprieved because it was subsequently shown to be viable. Accordingly, it is not possible to argue that the municipalities in whose territory the factories which could be closed are situated were directly concerned by the Commission's decision (that was in fact so only after the adoption of a subsequent management decision). It cannot even be accepted that the said requirement was satisfied for a municipality in which plant was actually closed because in that respect, since the Court is concerned with the question of the admissibility of legal proceedings, the date of adoption of the contested decision must surely be decisive (or at least the situation at the period within which the proceedings must be instituted) and it is not sufficient for a decision on the manner in which a decision concerns an applicant to be given only in the course of legal proceedings or even at the time judgment is given in those proceedings.
(b)
There is also justifiable doubt whether the decision is of individual concern to the municipalities, although I need not consider the question in detail in view of my preceding comments. The criteria for determining that question have been clear since the Court's judgment in Case 25/62 (
10
) (to which reference was, for example, made as recently as in the Court's judgment in Case 231/82 (
11
) the important question is whether a decision addressed to a person other than the persons claiming to be individually concerned “affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distingiushes them individually just as in the case of the person addressed”.
(aa)
That was accepted for example in the Court's judgment in Case 88/76 (
12
) in respect of traders holding export licences issued before a certain date with advance fixing of a refund in relation to a provision excluding the right to cancel such licences (because they were differentiated from all other persons by reasons of actual circumstances and distinguished individually just as in the case of the person addressed). It was not applied in Joined Cases 239 and 275/82 (
13
) in respect of importers affected by antidumping duties because the decision was not intended to apply to them (since their special position was not taken into account) unlike the exporters and producers in the nonmember country in question.
(bb)
It must not be forgotten that the basic assumption in this case is that the applicant municipalities are affected only indirectly by the contested decision. However, in such a case, characterized by the effects of the decision on the economic and financial sitution, there is, in addition, a wide circle of other persons affected by the decision such as employees, who lose their employment as a result of the capacity reductions, customers and suppliers of the factories to be closed and businessmen in municipalities in which the workers affected by the closure reside. If the circumstances are examined in that way it is in fact difficult to regard the Commission's decision as being of individual concern to the applicant municipalities in a manner comparable to that of an addressee.
(c)
I should like to add, finally, that it is not possible to come to a contrary conclusion by reason of the fact that it appears that, according to Luxembourg law, it is not possible to challenge directly the aforementioned Luxembourg legislation which was passed in respect of the Commission's decision. It is not possible to accept the argument that Article 173 of the EEC Treaty should be given a wide interpretation, taking account of the European Convention on Human Rights and general principles of law, in order to provide a complete system of legal protection.
It must be admitted that there are judgments of the Court which, in connection with decisions as to admissibility of actions under Article 173 of the EEC Treaty, refer to the possibility of instituting proceedings under national law in respect of national provisions which are linked to a community measure (which was approximately the position in the aforementioned Cases 123/77, 239 and 275/82 and 231/82 (
14
)). It is certainly not possible to deduce from that, however, (and in that respect it must be recalled too that in C^se 113/77 (
15
) reference to the right to bring an action under national law was rejected as irrelevant) and access to the Court of Justice depends essentially on the extent to which rights of action exist or are wanting under national law. Article 173 of the EEC Treaty is a provision of Community law without any express connection with national law; it must therefore be interpreted by reference to Community law alone, that is to say without reference to the nature of legal protection under national law.
If it is true therefore that the applicant municipalities have no right of action under Luxembourg law in relation to the closure of factories in their territory (it might be that to consider the aforementioned statute alone, in respect of which implementing measures must presumably still be adopted, is to examine the position from too narrow a point of view), it would be more appropriate to object to the fact that legal protection under Luxembourg law is too restrictive than to draw any conclusions with regard to the interpretation of Community law.
C —
By way of summary I therefore propose that the Court should declare that the Commission's objection of inadmissibility is justified, that it should dismiss the applications of the five Luxembourg municipalities as inadmissible and should order them, in accordance with the Commission's application, to pay the costs.
(
1
)	Translated from the German.
(
2
)	Judgment of 10.2.1983 in Case 230/81 Grand Duchy of. Luxembourg V European Parliament [Ì983] ECR 255.
(
3
)	Judgment of 15.7.1963 in Case 25/62 Plaumann & Co. v Commission of the European Economic Community [1963] ECR 95.
(
4
)	Judgment of 13.5.1971 in Joined Cases 41 to, 44/70 NV International Fruit Company and Others v Commission of the European Communities [1971] ECR 411.
(
5
)	Judgment of 6.3.1979 in Case 92/78 Simmenthal SpA v Commission of the European Communities [1979] ECR 777.
(
6
)	Judgment of 29.3.1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council of the European Communities [1979] ECR 1185.
(
7
)	Judgment of 23.11.1971 in Case 62/70 Werner A. Bock v Commmission of the European Communities [1971] ECR 897.
(
8
)	Judgment of 16.3.1978 in Case 123/77 Unione Nazionale Importatori e Commercianti Motoveicoli Esteri (UNICME) and Others v Council of the European Communities [1978] ECR 845.
(
9
)	Judgment of 16.1.1979 in Joined Cases 103 to 109/78 Société des Usines de Beauport and Others v Council of the European Comunities [1979] ECR 17.
(
10
)	Judgment of 15.7.1963 in Case 25/62 Plaumann & Co. v Commission of the European Econmic Community [1963] ECR 95.
(
11
)	Judgment of 14.7.1983 in Case 231/82 Spijker Kwasten BV v Commission of the European Communities [1983] ECR 2559.
(
12
)	Judgment of 31.3.1977 in Case 88/76 Société pour l'Exportation des Sucres SA v Commission of the European Communities [1977] ECR 709.
(
13
)	Judgment of 21.2.1984 in Joined Cases 239 and 275/82 Allied Corporation and Others v Commission of the European Communities [1984] ECR 1005.
(
14
)	Judgment of 16.3.1978 in Case 123/77 Unione Nazionale Importatori e Commeráanti Motoveicoli Esten (UNICME) and Others v Council of the European Communities [1978] ECR 845. Judgment of 21.2.1984 in Joined Cases 239 and 275/82 Allied Corporation and Others v Commission of the European Communities [1984{ ECR 1005. Judgment of 14.7.1983 in Case 231/82 Spijker Kwasten BV v Commission ol the European Communities [1983] ECR 2559.
(
15
)	Judgment of 29.3.1979 in Case 113/77 NTN Toyo Bearing Company Ltd and Others v Council of the European Communities [1979] ECR 1185.