61999CC0197_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In 1996 the Belgian authorities adopted a series of financial measures to assist the steel undertaking Forges de Clabecq SA (hereinafter
" Forges de Clabecq" ).
By decision of 18 December 1996,
(2) the Commission declared that the measures at issue constituted State aid incompatible with the common market and ordered the repayment of the aid unlawfully paid.
2. Several actions for annulment were brought against that decision before the Court of First Instance of the European Communities.
(3)
The Kingdom of Belgium is now seeking the annulment of the judgment of the Court of First Instance of 25 March 1999
(4) dismissing the action brought by Forges de Clabecq.
I ─ Community legislation
3. The ECSC Treaty prohibits State aid for steel undertakings in principle, stating in Article 4(c) that
" subsidies or aids granted by States, or special charges imposed by States, in any form whatsoever"
are incompatible with the common market in coal and steel and therefore prohibited, as provided in the Treaty.
4. The first paragraph of Article 95 of the ECSC Treaty provides as follows:
" In all cases not provided for in this Treaty where it becomes apparent that a decision or recommendation of the Commission 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."
5. In order to meet the restructuring needs of the steel sector, the Commission relied on those provisions of Article 95 of the Treaty in order to introduce in the 1980s a Community aid scheme authorising the grant of State aid to the steel industry in specific and limited cases.
The Community scheme for aid to the steel industry in force during the material period was that introduced by Commission Decision No 3855/91/ECSC of 27 November 1991 establishing Community rules for aid to the steel industry
(5) ( " the Fifth Steel Aid Code" ).
6. Under Article 1(1) of the Code,
" aid to the steel industry ... financed by Member States, or their regional or local authorities or through State resources ..., may be deemed Community aid and therefore compatible with the orderly functioning of the common market only if it satisfies the provisions of Articles 2 to 5." (6)
7. At procedural level, Article 6(2) of the Code provides that the Commission shall be informed, in sufficient time, of any plans for transfers of State resources, by Member States, regional or local authorities or other bodies to steel undertakings.
Under Article 6(4) the Member State concerned may put the planned measures into effect only with the approval of the Commission.
II ─ The background to the dispute
8. On 25 June 1996 the Belgian authorities notified to the Commission, under Article 6(2) of the Code, a restructuring plan for the continuance of the activities of Forges de Clabecq.
The plan included various measures and, in particular, an injection of capital amounting to BEF 1 500 million and a rescheduling of the debts of the undertaking.
Only the latter financial measure is at issue in these proceedings.
9. The debts owed by Forges de Clabecq stemmed from several loans granted by two Belgian companies, the Société nationale de crédit à l ' industrie (National Company for Loans to Industry, hereinafter
" SNCI" ) and the Compagnie belge pour le financement de l ' industrie SA (Belgian Company for Financing Industry, hereinafter
" Belfin" ).
10. During the first half of the 1980s SNCI granted four loans to Forges de Clabecq.
(7)
The initial loan was in the amount of BEF 1 500 million and consisted of two successive instalments: the first instalment of BEF 820 million and the second of BEF 680 million.
The second loan was for BEF 850 million.
The third loan was in the amount of BEF 1 500 million and the fourth, granted in 1985, was for BEF 650 million.
11. By two decisions of 16 December 1982 and 31 July 1985,
(8) the Commission authorised, subject to certain conditions, part of the SNCI loans.
12. Belfin also granted Forges de Clabecq several loans
(9) by means of capital borrowed from financial institutions.
The initial loan, granted in 1991, was in the amount of BEF 300 million
(10) and a second, granted in 1994, was for BEF 200 million.
(11)
13. On 5 July 1996, the Commission wrote to the Belgian authorities to ask whether they had adopted measures other than those notified.
It also observed that the notification contained no information as to the conditions applicable to the rescheduling of the debts of Forges de Clabecq.
14. The Belgian authorities replied to the Commission by letter dated 23 July 1996, appending to their letter several documents recording an agreement in principle between SNCI and Belfin to postpone repayment of the loans by three years.
15. By a communication under Article 6(4) of the Aid Code, published on 11 October 1996,
(12) the Commission put the Belgian Government on notice and requested it, together with any other interested party, to submit its observations. The Kingdom of Belgium replied to that formal notice by letter of 23 October 1996.
16. On 18 December 1996, the Commission adopted the contested decision.
It declared that all the measures taken by Belgium to assist Forges de Clabecq
(13) constituted State aid incompatible with the common market.
17. As regards the rescheduling of the undertaking ' s debts, the Commission found that the SNCI and Belfin loans were covered by a State guarantee.
It declared that those guarantees constituted State aid which should have been notified under Article 6(2) of the Code.
The Commission also stated that the extension of the State guarantee for a further three-year period increased the aid element involved in the guarantee.
It concluded that
" [t]he guarantees in respect of the loans granted by Belfin and SNCI and their extension to the postponed due dates constitute State aid"
and that
" the aid [is] illegal since it was granted without the Commission ' s prior authorisation" .
(14)
18. Consequently, the Commission required the Belgian authorities to abolish all the financial aid measures and demand repayment of the illegal aid already paid.
19. On 19 December 1996, the day after the adoption of the contested decision, the directors of Forges de Clabecq acknowledged that the undertaking was insolvent before the Tribunal de commerce (Commercial Court), Nivelles, Belgium.
III ─ Proceedings before the Court of First Instance
20. By application lodged at the Court of First Instance on 25 February 1997, Forges de Clabecq brought an action for annulment of the contested decision.
The Kingdom of Belgium intervened in support of the forms of order sought by the applicant.
(15)
21. The Belgian Government developed a specific line of argument to dispute the Commission ' s assessment that
" [t]he [State] guarantees in respect of the loans granted by Belfin and SNCI and their extension to the postponed due dates constitute ... illegal State aid" .
(16)
22. The Kingdom of Belgium put forward four pleas supporting the claim for annulment, alleging (1) infringement of the obligation to state reasons, (2) infringement of the Commission ' s decisions of 16 December 1982 and 31 July 1985, (3) infringement of Article 6 of the Aid Code and (4) manifest error of assessment and infringement of Article 4(c) of the ECSC Treaty.
IV ─ The contested judgment
23. By its first plea, the Kingdom of Belgium claimed that the contested decision was not sufficiently reasoned in the light of Article 15 of the ECSC Treaty.
(17)
It stated
(18) that the Commission criticised the
" SNCI and Belfin loans"
without stating which precise loans it was referring to.
The Belgian Government considered that, in the absence of those precise details, it was impossible to understand the operative part of the contested decision, which states that
" Belgium is ... required to abolish the aid measures referred to ... and demand that the illegal aid already paid be reimbursed."
24. The Court rejected this first plea on the ground that:
" 110 ... The Belgian Government cannot claim that it is unable to ascertain which loans are concerned.
The contested decision clearly refers to all the guarantees attaching to all the Belfin and SNCI loans."
25. The second plea for annulment related to the State guarantees attaching to the SNCI loans.
(19)
The Kingdom of Belgium emphasised that the State guarantees criticised by the contested decision related to the second instalment, in the amount of BEF 680 million, of the first SNCI loan, and to the fourth SNCI loan, for BEF 650 million.
It pointed out that the State guarantee attaching to the first SNCI loan ─ including the second instalment of BEF 680 million ─ had been expressly authorised by Commission decision of 16 December 1982 (hereinafter
" the 1982 decision" ). Similarly, the State guarantee attaching to the fourth SNCI loan of BEF 650 million had been authorised by decision of 31 July 1985 (hereinafter
" the 1985 decision" ).
The Belgian Government considered that, in those circumstances, the Commission was unable, without infringing its previous decisions, to examine the same measures in the light of the Aid Code currently in force and to conclude that they were unlawful and order repayment.
It stated that it had observed the conditions for approval laid down by the Commission in its decisions of 1982 and 1985.
26. The Court rejected this second plea for the following reasons:
" 97. It is settled case-law that the principle of legal certainty aims to ensure that situations and legal relationships governed by Community law remain foreseeable ... .
To that end, it is essential that the Community institutions observe the principle that they may not alter measures which they have adopted and which affect the legal and factual situation of persons, so that they may amend those acts only in accordance with the rules on competence and procedure ... .
98. However, breach of that principle cannot effectively be pleaded if the person whose legal and substantive position was affected by the decision in question did not observe the conditions laid down in it ... .
99. In the present case it is clear that in 1996 none of the State guarantees of the SNCI and Belfin loans still came within the terms of the authorisation given by the Commission in its decisions of 1982 and 1985.
In fact in the years following those decisions the Belgian authorities made certain major modifications to the conditions under which those loans were to be repaid, and these were particularly favourable to the applicant.
It is clear in particular from the explanations given in that connection by the Belgian Government (paragraph 12 of the statement in intervention) that the Belgian State took over the sum of BEF 198 million out of the total loan of BEF 680 million and allowed the expiry dates on various SNCI loans and the relevant State guarantees to be deferred by several years.
100. These modifications were not notified to the Commission and cannot be regarded as compatible with the conditions to which the 1982 and 1985 authorisations were subject.
In the 1982 decision the Commission had stated to the Belgian Government that authorisation of the measure notified was to be the applicant ' s final chance of seeking solutions for its problems in financial assistance from the State.
That condition was clearly disregarded by the modifications subsequently made by the Belgian authorities to the measure authorised.
In the 1985 decision the Commission stated that the aid authorised was to be put in place by 31 December 1985; that precluded the substantial modifications made subsequently in the applicant ' s favour to the loan arrangements which had been authorised.
In any event, it is plain that Commission authorisations in matters of State aid can relate only to the measures as notified and cannot be regarded as retaining their effects beyond the period initially laid down for implementation of those measures.
"
27. The third plea for annulment alleged infringement of Article 6 of the Aid Code. (20)
The Kingdom of Belgium pointed out that, in the contested decision, the Commission had considered that the extension, for a further three-year period, of the State guarantees attaching to the SNCI and Belfin loans constituted illegal aid on the ground that it had been granted without the Commission ' s prior authorisation.
It submitted that that assessment was incorrect since the extension in question had been duly notified to the Commission on 25 June 1996 and had never been implemented, in accordance with Article 6(2) and (4) of the Code.
28. The Court of First Instance did not give a ruling on this plea.
29. By its fourth plea,
(21) the Kingdom of Belgium claimed that the Commission had committed a manifest error of assessment by concluding that the Belfin loans were covered by a State guarantee.
It pointed out that only
borrowings
by Belfin from banks were covered by such a guarantee and not
loans
by Belfin to undertakings.
30. The Court rejected this fourth plea on the ground that:
" 70. As to the SNCI and Belfin loans, it is clear, first, that it was not the loans as such but merely the State guarantees covering them which the Commission deemed to constitute aid.
Next, it is clear that the Belgian Government ' s argument that there was no State guarantee for the Belfin loans is refuted by a letter of 25 June 1996 addressed by Belfin [to Forges de Clabecq] and annexed by the [Société wallonne pour la sidérurgie SA (SWS)] to its letter of 23 July 1996 to the Commission stating that the agreement of principle with a deferral of three years in the timetable for repayment of the principal sum of the loans granted [to Forges de Clabecq] by Belfin was subject to the condition that
" the State agree [public loan] to extend its guarantee to cover that deferral" .
The fact that State guarantees constitute aid may also no longer effectively be denied.
"
31. The Court of First Instance held that the pleas put forward by Forges de Clabecq and the other intervening parties were also unfounded.
It therefore dismissed the action in its entirety.
V ─ The appeal
32. The Kingdom of Belgium brought this appeal by application lodged at the registry of the Court of Justice on 26 June 1999.
By order of 24 January 2000
(22) Belfin was given leave to intervene in support of the forms of order sought by the appellant.
Both parties seek the setting-aside of the contested judgment and the annulment of the contested decision.
33. In support of their claims, they put forward six pleas for annulment. Two pleas relate both to the SNCI loans and the Belfin loans (point A); two relate specifically to the SNCI loans (point B), and two relate specifically to the Belfin loans (point C).
A ─ Pleas relating to the SNCI loans and the Belfin loans
1. First plea: infringement of the obligation to state reasons
(a) The appellant ' s arguments
34. In its first plea for annulment, the Kingdom of Belgium criticises paragraphs 70 and 110 of the contested judgment.
It puts forward the following arguments:
(23)
" 4. It is clear from the above that ... The Court ... did not identify the SNCI and Belfin loans referred to by the Commission, and in particular the SNCI loans referred to, even though the appellant had specifically criticised the absence in the [contested] decision of reasons in that regard (see paragraph 21 of the statement in intervention).
Like the Commission, the Court of First Instance refers to those loans as
" the SNCI and Belfin loans "
without specifying which loans it is speaking about.
Such identification is however necessary, since several loans were granted to Forges de Clabecq, as the Court recalled ... .
5. Since the [contested] decision is insufficiently reasoned, the appellant has deduced that the loans concerned are, as regards the SNCI loans, the second instalment in the amount of BEF 680 million of the first investment loan of BEF 1 500 million and the last investment loan of BEF 650 million. As regards the Belfin loans, the appellant believes that the reference is to two loans, one for BEF 300 million and the other for BEF 200 million.
6. It was for the Court of First Instance to give a ruling on the lack of identification of the loans covered by the Commission ' s criticism. Adequate reasons are not given in the judgment for the Court ' s finding that the Commission had identified those loans sufficiently.
Therefore, the contested judgment is vitiated by an absence of grounds.
"
(b) Assessment
35. I consider the arguments put forward by the Kingdom of Belgium to be confused and ambiguous.
It is difficult to determine whether it is referring to the obligation of the Court of First Instance to state the grounds of its judgment or the Commission ' s obligation to state the reasons for its decision.
36. Firstly, the Belgian Government refers to the absence or inadequacy of the grounds of the contested judgment.
It claims that
" the contested judgment is vitiated by an absence of grounds" (24) on the ground that
" the Court ... did not identify the SNCI and Belfin loans referred to by the Commission" .
(25)
37. Secondly, the Belgium Government also criticises the Court ' s finding that the contested decision is sufficiently reasoned.
It states that
" [a]dequate grounds are not given in the judgment for the Court ' s finding that the Commission had identified those loans sufficiently" .
(26)
38. The Kingdom of Belgium thereby confuses two different pleas for annulment. (27)
39. The first plea relates to the procedural requirement to state reasons.
It seeks a declaration that the grounds of the contested judgment are absent or inadequate and is based, in the present case, on infringement of Articles 30 and 46 of the ECSC Statute of the Court of Justice.
(28)
Article 30 of the ECSC Statute ─ applicable to the Court of First Instance pursuant to Article 46 of the Statute ─ provides that
" [j]udgments shall state the reasons on which they are based" .
(29)
40. On the other hand, the second plea refers to the substantive legality of the contested judgment.
It is based on the existence of an error in law and seeks a declaration that the Court of First Instance misinterpreted the scope of the Commission ' s obligation to state reasons.
(30)
In those circumstances, the Kingdom of Belgium claims that the Court committed an error in law in that it held that the reasoning of the contested decision in respect of the identification of the SNCI and Belfin loans complied with the requirements of Article 15 of the ECSC Treaty.
41. Since it is impossible to determine precisely the aim of the plea raised by the Kingdom of Belgium, I shall consider in turn the two hypotheses stated below.
(i) First hypothesis: the plea alleges infringement of Articles 30 and 46 of the ECSC Statute
42. In the first hypothesis, the Kingdom of Belgium claims that the statement of grounds of the contested judgment is defective on the ground that the Court did not identify the SNCI and Belfin loans covered by the contested decision.
43. It is true that the reasoning of the contested judgment is terse on that point. The Court merely stated that
" the Belgian Government cannot claim that it is unable to ascertain which loans are concerned.
The contested decision clearly refers to all the guarantees attaching to all the Belfin and SNCI loans" .
(31)
44. However, unlike the Kingdom of Belgium, I do not believe the Court of First Instance can be blamed for failing to identify the SNCI and Belfin loans referred to by the contested decision.
45. In paragraph 8 of the contested judgment, the Court described the SNCI loans in the following way:
" During the first half of the 1980s a recovery plan was drawn up for [Forges de Clabecq] under which it was granted several investment loans. ... An initial loan was in the amount of BEF 1 500 million, a second was for BEF 850 million, and a third was for BEF 1 500 million.
The fourth and final loan in that series was granted in 1985 and amounted to BEF 650 million.
This line of credits ... is commonly referred to as the
" SNCI loans"
(loan agreements with the national company for loans to industry).
"
46. Similarly, in paragraph 9 of the contested judgment, the Court describes the Belfin loans in the following way:
" The Compagnie Belge pour le Financement de l ' Industrie (Belgian Company for Financing Industry, hereinafter
" Belfin" ) ... also granted [Forges de Clabecq] several loans by means of capital borrowed from financial institutions: [BEF] 104 million in 1988 and [BEF] 196 million in 1989, those two loans being subsumed in lines of credit of [BEF] 300 million in 1991 and [BEF] 200 million in 1994 superseding a loan entered into in 1987.
"
47. It is evident that the contested judgment does make it possible to identify the SNCI and Belfin loans covered by the contested decision.
The Court of First Instance held that the Commission had criticised the State guarantees attaching to the four SNCI loans
(32) and the guarantees attaching to the two Belfin loans ─ namely, the loan for BEF 300 million
(33) and the loan for BEF 200 million.
(34)
48. In the circumstances, I consider that the Court of First Instance satisfied its obligation to state reasons under Articles 30 and 46 of the ECSC Statute.
The first plea, inasmuch as it alleges infringement of those provisions, should therefore be rejected.
(ii) Second hypothesis: the plea alleges an error in law
49. In the second hypothesis, the Kingdom of Belgium considers that the Court erred in law by holding that the statement of reasons for the contested decision met the requirements laid down by Article 15 of the ECSC Treaty.
In its submission, the Court could not legitimately consider that the contested decision was sufficiently reasoned as regards the identification of the SNCI and Belfin loans.
50. It should be pointed out that the extent of the obligation to state reasons is a question of law reviewable by the Court of Justice on appeal.
(35)
A plea alleging failure to take account of the scope of that obligation is admissible even if it means that the Court of Justice must of necessity take into consideration the facts on which the Court of First Instance relied in reaching its conclusion.
(36)
51. As regards the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC), the Court of Justice has laid down the following principles.
(37)
52. The statement of reasons must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review.
The statement of reasons must be appraised in relation, in particular, to the content of the measure and the interest which the addressees or other persons concerned by the measure may have in obtaining explanations.
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.
53. According to the case-law,
(38) the same principles apply to the Commission ' s obligation to state reasons under Article 15 of the ECSC Treaty.
54. In the present case, the contested decision does not specify by name the SNCI and Belfin loans whose State guarantee is criticised.
In that decision, the Commission merely stated that the guarantees covering the SNCI and Belfin loans and their extension constitute illegal aid, without specifying the loans to which it referred.
55. However, unlike the Belgian Government, I do not believe that that circumstance renders the statement of reasons for the contested decision defective.
56. According to the case-law cited above, the statement of reasons for a measure must be assessed with regard to its context and to all the rules governing the matter in question.
Thus, in the context of State aid, the Court of Justice has held that it was necessary to take into account possible previous decisions of the Commission and the content of the Commission ' s communication initiating the investigation procedure.
(39)
57. In the present case, the decision to initiate the investigation precisely identifies the SNCI and Belfin loans which are criticised.
In its Notice 96/C 301/03 pursuant to Article 6(4) of the Code,
(40) the Commission stated that it had invited the Belgian authorities to provide it with details of the rescheduling of the debts of Forges de Clabecq and that:
" In their reply of 26 July 1996 ..., the Belgian authorities stated that ... the due dates on the loans granted by the Société nationale de crédit à l ' industrie (SNCI) (BEF 680 million and BEF 650 million) and Belfin (including one of BEF 200 million) have been extended by three years" .
58. The decision to initiate an investigation therefore identifies the loans at issue as being two SNCI loans ─ a loan of BEF 680 million and a loan of BEF 650 million ─ and also the Belfin loans ─ one of them a loan for BEF 200 million.
59. In so doing, the Commission used the information given in the documents which the Belgian authorities had annexed to their letter of 23 July 1996.
(41)
Amongst those documents were a letter addressed on 25 June 1996 by Belfin to Forges de Clabecq,
(42) a supplementary agreement concluded on 3 May 1996 by Belfin and Forges de Clabecq
(43) and a letter addressed on 23 May 1996 by the Belgian Ministry of Finance to the SNCI.
(44)
The first document stated that Belfin had granted two loans to Forges de Clabecq. The second document showed the amount of one of those loans, namely BEF 200 million.
The third document stated that the SNCI had granted two loans to Forges de Clabecq, namely one loan for BEF 680 million and another for BEF 650 million.
60. It follows that, placed in its context and read in the light of the decision to initiate an investigation, the contested decision makes it possible to identify the SNCI and Belfin loans referred to.
The Commission criticised the State guarantees attaching to the second instalment of the first SNCI loan (BEF 680 million), to the fourth SNCI loan (BEF 650 million) and to the two Belfin loans (BEF 300 million and BEF 200 million).
61. Furthermore, the arguments presented by the Kingdom of Belgium confirm that the contested decision was sufficiently reasoned on that point.
In fact, it is apparent from the appeal
(45) that the Belgian authorities correctly identified the loans referred to by the Commission.
62. In those circumstances, the Court of First Instance did not err in law by holding that the statement of reasons for the contested decision met the requirements of Article 15 of the ECSC Treaty.
The first plea, in so far as it alleges such an error, should therefore be rejected.
(46)
2. Second plea: infringement of Articles 30 and 46 of the ECSC Statute
(a) The appellant ' s arguments
63. By its second plea for annulment, the Kingdom of Belgium claims that the statement of grounds of the contested judgment is defective.
It points out that, before the Court of First Instance, it had disputed the legality of the contested decision inasmuch as it stated that the extension of the State guarantees attaching to the SNCI and Belfin loans constituted illegal aid.
The Kingdom of Belgium notes that the Court omitted to adjudicate on that plea.
(b) Assessment
64. It is not disputed that the Court of First Instance did not adjudicate on the plea raised by the Kingdom of Belgium at first instance.
The question is therefore whether the Court was required to reply to that argument.
65. The Court of Justice has rarely taken the opportunity to define the content of the requirement that the Court of First Instance shall state reasons.
An examination of the relevant judgments shows that it prefers to determine, on a case by case basis, whether the Court of First Instance has stated adequate reasons for the conclusion it has reached.
However, certain principles may be extracted from current case-law.
66. It may be considered that the grounds of a judgment must disclose in a clear and unequivocal fashion the reasoning followed by the Court of First Instance, in such a way as to enable the persons concerned to ascertain the reasons for the decisions taken and to enable the Court of Justice to carry out its review.
(47)
In the case of an action brought under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) the requirement to state reasons clearly means that the Court of First Instance shall examine the pleas for annulment raised by the applicant and state the reasons which lead to rejection of the plea or annulment of the contested measure.
67.
In Connolly
v
Commission,
(48) however, the Court of Justice imposed limits on that obligation to reply to the pleas raised.
It held that the grounds of a judgment must be assessed in the light of the circumstances of the case
(49) and that the Court of First Instance is not obliged to respond in detail to every single argument advanced by the applicant.
(50)
In accordance with the Opinion delivered by Advocate General Ruiz-Jarabo Colomer,
(51) the Court of Justice held that the Court of First Instance was not required to respond to arguments which were not
" sufficiently clear and precise"
and
" adequately supported by evidence" .
(52)
68. On the basis of the case-law relating to Article 190 of the Treaty, it may also be considered that the Court of First Instance cannot be required to reply to arguments which are manifestly irrelevant or plainly of secondary importance.
(53)
69. In the light of those principles, I think that the Court of First Instance was required to adjudicate on the plea raised by the Kingdom of Belgium in the present case.
70. Firstly, the appellant ' s argument was sufficiently clear and precise within the meaning of the rule in
Connolly
v
Commission .
(54)
The Belgian Government claims that the extension, for a further period of three years, of the State guarantees attaching to the SNCI and Belfin loans did not constitute illegal aid because it had been notified to the Commission under Article 6(2) of the Aid Code.
(55) Furthermore, the argument was
" adequately supported by evidence"
since the file contained the notification made by the Belgian authorities to the Commission on 25 June 1996.
(56)
71. Secondly, it can hardly be considered that the argument put forward by the Kingdom of Belgium was
" manifestly irrelevant"
or
" plainly of secondary importance" .
72. It should be noted that Article 6(4) of the Code prohibits Member States from implementing their financial aid plans without the Commission ' s approval.
It is evident, even though the Court of Justice did not expressly say so, that that provision has direct effect and creates rights for individuals which the national courts are required to protect.
(57)
73. Individuals may therefore rely, before national courts, on breach of the prohibition contained in Article 6(4) of the Code.
According to the case-law,
(58) those courts are required to ensure that all the inferences of such a breach are drawn in accordance with national law.
74. At national level, a finding that a State aid is illegal may have several significant consequences.
First of all, individuals who establish that they have an interest may request the national court to order the recovery of aid granted in disregard of the prohibition contained in Article 6(4) of the Code.
The Court of Justice has held that, unlike the Commission, national courts have the power to order recovery of aid solely on the ground that it was not notified.
(59)
Also, the national court may, irrespective of the content of the Commission ' s final decision, declare illegal the measure establishing the aid as well as the measures giving effect to the aid.
(60)
It follows that the validity of all the measures relating to the implementation of the aid may be affected.
That consequence poses particular problems in the case of aid granted in the form of a State guarantee since, in that situation, the illegality of the aid is likely to have repercussions on the legal relations between the State and the lending body.
The Commission considers, furthermore, that the question of the extent to which the illegality of the aid affects the legal relations between the State and third parties is a matter which has to be examined according to national law.
(61)
Finally, breach of the prohibition against implementing the aid may be regarded as a breach which is
" sufficiently serious"
within the meaning of the rule in
Brasserie du pécheur (62) to render the State liable.
(63)
A finding that the aid is illegal may therefore provide the national court with a basis on which to require the State to repair the damage which the immediate payment of the aid has caused.
(64)
The action for damages may be brought not only by the beneficiary of the aid,
(65) but also by its competitors if repayment of the aid does not restore them to the position they occupied before the payment was made.
(66)
75. It follows that the plea put forward by the Kingdom of Belgium at first instance clearly demonstrated an interest.
By denying that the State guarantees were unlawful, the Belgian Government sought to avoid the consequences of the direct effect of Article 6(2) of the Code and, in particular, the possibility that its liability for infringement of Community law might be put in issue, and also the nullity of the public and private measures connected with the implementation of the disputed extension.
76. Consequently, I consider that the Court of First Instance failed to fulfil its obligation to state reasons by omitting to deal with the plea raised by the Kingdom of Belgium.
I therefore propose that the Court of Justice set aside the contested judgment on that point.
B ─ Pleas relating specifically to the SNCI loans
77. In the light of the conclusions I have reached, an examination of the other pleas for annulment is not warranted.
If, as I believe, the contested judgment should be set aside on the ground that the Court of First Instance failed to fulfil its obligation to state reasons, the other pleas put forward by the Kingdom of Belgium are irrelevant.
It is therefore in the alternative that I shall continue with my examination.
78. The Kingdom of Belgium puts forward two pleas for annulment concerning the SNCI loans.
The first alleges infringement of the principle of legal certainty. The second alleges that the statement of grounds of the contested judgment is inadequate.
1. First plea: infringement of the principle of legal certainty
(a) The appellant ' s arguments
79. In its first plea, the appellant criticises the Court of First Instance for holding that the Belgian authorities could not rely on the decisions of 1982 and 1985.
(67)
It maintains that the Court ' s reasoning contains a double error in law.
80. Firstly, the Court made an erroneous characterisation in law of the facts.
It held that the 1982 decision made authorisation of the State guarantee attaching to the first SNCI loan conditional on Forges de Clabecq not receiving any subsequent financial support from the Belgian State.
However, that detail does not appear amongst the conditions imposed by the Commission for approval of the guarantee in question.
That error of characterisation was in breach of the principle of legal certainty since it led the Court to refuse the Belgian authorities the opportunity of relying on the 1982 decision.
81. Secondly, the Court wrongly held that the modifications made to the SNCI loan infringed the conditions laid down by the 1985 decision.
In fact, the modifications in question consisted merely in postponing some of the expiry dates on the loan without modifying the time allowed for repayment.
(b) Assessment
82. In paragraphs 97 to 101 of the contested judgment, the Court held that the Belgian authorities could not rely on the decisions of 1982 and 1985 on the ground that, by making significant modifications to the detailed rules for repayment of the SNCI loans, they had infringed the conditions for approval laid down by those decisions.
83. I consider that the contested judgment contains an error in law on that point.
In my view, the Court did not establish that the contested decision was not sufficiently reasoned under Article 15 of the ECSC Treaty.
84. It is apparent from settled case-law that a plea alleging infringement of an institution ' s obligation to state the reasons for a measure constitutes a matter of public interest which must be raised by the Community judicature of its own motion.
(68) If the Court of First Instance does not raise that plea of its own motion, although the contested decision does not meet the requirements to state reasons, it commits an error in law which must be penalised by the Court of Justice.
(69)
85. In the present case, the 1982 decision had authorised the Belgian Government to constitute a State guarantee in respect of the first SNCI loan for BEF 1 500 million.
The 1985 decision followed a notification from the Belgian authorities of 31 May 1985
(70) and authorised them to constitute a guarantee in respect of the fourth SNCI loan for BEF 650 million.
By those two decisions, the Commission had therefore declared that the State guarantees constituted aid which was legal and compatible with the common market.
86. It is not in dispute that the Commission altered that assessment in the contested decision.
It held that:
" The provision of a State guarantee in respect of a loan normally constitutes State aid, which should have been notified to the Commission and should not have been put into effect without the latter ' s approval. ... .
These rules were not complied with in the case of the loans granted to Forges de Clabecq ... .
The guarantees in respect of the loans granted by Belfin and SNCI ... constitute State aid.
The aid is furthermore illegal since it was granted without the Commission ' s prior authorisation.
" (71)
87. However, contrary to the requirements of the case-law,
(72) the contested decision does not give the reasons why the Commission revoked its decisions of 1982 and 1985.
It does not contain any indication why the Commission retrospectively cancelled authorisation for the State guarantees approved in 1982 and 1985.
The statement of reasons for the contested decision does not therefore enable the persons concerned to ascertain the reasons for the measure or enable the Community judicature to carry out its review.
88. In the circumstances, I consider that the Court of First Instance erred in law by omitting to raise of its own motion the plea alleging infringement of the obligation to state reasons.
Furthermore, by stating the reasons why, in its view, the Belgian authorities could not rely on the decisions of 1982 and 1985, the Court substituted its own reasoning for that of the Commission.
It therefore also exceeded the limits of its competence under Article 33 of the ECSC Treaty in respect of the review of the legality of measures adopted by the Commission.
(73)
For these various reasons, I therefore suggest that the Court of Justice should set aside the contested judgment.
89. In the event that the Court decides not to adopt that solution, I shall examine briefly, in the alternative, the arguments put forward by the Kingdom of Belgium.
90. The 1982 decision was adopted in the following context.
On 4 November 1980, the Belgian authorities informed the Commission of their intention to constitute a State guarantee on the first instalment of the first SNCI loan (BEF 820 million).
(74)
On 11 August 1982, the same authorities informed the Commission of their decision to extend the guarantee to the whole of the loan.
(75)
That notification also covered other measures planned by the Belgian State to help the steel sector.
91. By a communication of 11 October 1982, adopted pursuant to Article 8(3) of Decision No 2320/81/ECSC,
(76) the Commission decided to initiate the investigation procedure and to give the parties concerned notice to submit their observations.
(77)
92. On 16 December 1982, it took its decision with regard to four procedures opened between 19 December 1980 and 25 November 1982, relating to investment aid, emergency aid and operational aid for Forges de Clabecq.
The Commission authorised the grant of the sum of BEF 1 985 million by way of guarantee, BEF 1 500 million of which was for the first stage of the investment programme.
Its decision reads as follows:
" In those circumstances, and for the time being, the Commission authorises only the grant of BEF 1 985 million by way of guarantee (BEF 1 500 million for the first stage of the investment programme and BEF 485 million for operational aid). However, such authorisation is subject to the following conditions:
(i) Your Government will not grant the other aid initially envisaged for investment (tax allowance and aid for the first stage and a guarantee for the second).
(ii) The amount of the guarantee for the last measure (SID/B/18) may not exceed 820 million Belgian francs.
(iii) Forges de Clabecq shall comply with the provisions which the Commission will lay down in order to prevent the aid thus released being used by Forges de Clabecq to cover losses incurred as a result of its non-compliance with the provisions concerning prices.
The Commission also expects the Belgian Government to assist it in ensuring that Forges de Clabecq fulfils its obligations in respect of production quotas.
The Commission will decide as to the guarantees still subject to the procedure under Article 8(3) as soon as it receives the observations of the interested parties in connection with the said procedure.
For that purpose it will take account of the opposing views put forward which have enabled it to adopt this decision.
The Commission draws the attention of the Belgian Government to the fact that the release of such an amount of aid means that Clabecq will no longer be able to qualify for public assistance whatever the course of development on its markets. However, it must be stated that, even if the statistical information communicated to the Commission establishes its profitability, Clabecq will remain extremely sensitive to fluctuations in its markets.
It will therefore need to seek as soon as possible specialisations which provide a better basis for that profitability, since the problems which might still arise for the undertaking will no longer be able to find a solution in financial assistance from the State
" .
93. The 1982 decision therefore lays down three conditions for approval of the State guarantee attaching to the first SNCI loan.
Firstly, the Belgian authorities must abandon the idea of granting certain aid which they had originally intended providing.
(78)
Secondly, the Belgian authorities are required to limit to BEF 820 million the State guarantee attaching to the third SNCI loan for BEF 1 500 million.
Thirdly, Forges de Clabecq cannot use the aid to cover the losses arising from non-compliance with the Commission ' s provisions relating to prices.
It must also fulfil its obligations regarding production quotas.
94. It is clear from this that, contrary to what the Court of First Instance held, the Commission did not lay down any condition to the effect that
" authorisation of the measure notified was to be [Forges de Clabecq ' s] final chance of seeking solutions for its problems in financial assistance from the State" .
(79)
95. That matter appears only as a final remark in the 1982 decision, and not under the conditions imposed for approval of the State guarantee.
If the Commission had actually wished to make its authorisation subject to such a condition, it would have included the item in the list of conditions laid down for approval.
(80)
As that was not the case, the Commission ' s remark can constitute only a simple warning, expressing negative feelings with regard to any further intervention by the Belgian authorities in favour of Forges de Clabecq.
96. The documents in the case confirm that the matter in question could not be a condition for the approval of the State guarantee.
Indeed, by the 1985 decision, the Commission authorised the Belgian Government to grant new aid of BEF 2 253 million to Forges de Clabecq, BEF 650 million of which was the State guarantee on the fourth SNCI loan.
It is hard to believe that the 1982 decision contained a provision prohibiting any subsequent aid from the Belgian State when, three years later, the Commission itself approved new aid in favour of Forges de Clabecq.
(81)
97. Consequently, I consider that the Court of First Instance made an error of legal characterisation by holding that the 1982 decision included a provision prohibiting any subsequent aid from the Belgian State in favour of Forges de Clabecq.
Since it based its refusal to allow the Belgian authorities to rely on the 1982 decision on an infringement of that condition, the Court also disregarded the principle of legal certainty.
98. Without it being necessary to examine the other arguments put forward by the appellant, I therefore propose that the Court of Justice set aside the contested judgment.
2. Second plea: infringement of the obligation to state reasons
99. By its second plea, the Kingdom of Belgium claims that the statement of grounds of the contested judgment is inadequate.
In the light of the foregoing considerations, an examination of this plea is now devoid of purpose.
C ─ Pleas relating specifically to the Belfin loans
100. The Kingdom of Belgium puts forward two pleas for annulment in respect of the Belfin loans.
The first plea alleges distortion of the evidence brought before the Court of First Instance.
The second plea alleges that the statement of grounds for the contested judgment is inadequate.
1. First plea: distortion of the clear sense of the evidence
(a) Belfin ' s arguments
101. In its firs t plea, Belfin criticises the Court for having held that the State guarantee related to the loans which it had granted to Forges de Clabecq.
102. In paragraph 70 of the contested judgment, the Court held that
" the Belgian Government ' s argument that there was no State guarantee for the Belfin loans is refuted by a letter of 25 June 1996 addressed by Belfin to [Forges de Clabecq] ..., stating that the agreement of principle with a deferral of three years in the timetable for repayment of the principal sum of the loans granted to [Forges de Clabecq] by Belfin was subject to the condition that
" the State agree (public loan) to extend its guarantee to cover that deferral" .
"
103. According to Belfin, the letter of 25 June 1996 does not in any way establish that the Belgian State guarantee attached to loans which Belfin had granted to Forges de Clabecq.
It confirmed only that the State ' s agreement was required for deferral of the expiry dates of the borrowings made by Belfin from its own financial backers.
104. Belfin adds that, before the Court of First Instance, the Belgian Government had produced evidence to show that only the borrowings made by Belfin were covered by the Belgian State guarantee.
In those circumstances, the Court had distorted the clear sense of the evidence produced before it.
Furthermore, the contested judgment was clearly inaccurate.
(b) Assessment
105. Under Article 32d of the ECSC Treaty, which is identical to Article 168A of the EC Treaty (now Article 225 EC), the appeal must be limited to questions of law.
An appeal may therefore rely only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts.
(82)
106. However, it follows from consistent case-law that the Court of Justice has jurisdiction to consider the finding of facts made by the Court of First Instance where the substantive inaccuracy of such findings is apparent from the documents in the case.
(83)
The Court of Justice has held that, in that event, the substantive inaccuracy must be obvious from the documents before the court without its being necessary to undertake a fresh assessment of the facts.
(84)
107. Furthermore, the Court has repeatedly held that, although it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced,
(85) the matter of distortion of that evidence is a point of law which may be subject to review by the Court of Justice hearing an Appeal.
(86)
108. Since the first plea is based on such complaints, it must be held admissible in accordance with the aforementioned case-law.
109. Before the Court of First Instance, the Kingdom of Belgium claimed that the Commission had committed a manifest error by holding that the Belfin loans were covered by a State Guarantee.
(87)
It stated many times that only the borrowings made by Belfin from financial institutions were covered by such a guarantee.
(88)
110. By way of evidence, the Belgian Government produced several documents before the Court.
It based its argument on the Royal Decree of 29 June 1981 establishing a Belgian Company for Financing Industry,
(89) on the Belfin Shareholders ' Agreement of 31 July 1981
(90) and on Supplementary Agreement No 3 to that Agreement signed on 25 April 1994.
(91)
111. I, for my part, consider that all of this evidence shows, contrary to the finding of the Court of First Instance, that the Belgian State guarantee covered the borrowings made by Belfin, and not the loans made to Forges de Clabecq.
112. Article 2 of the Royal Decree of 29 June 1981 describes Belfin ' s task as
" to contribute ... to the financing of investment to be made in connection with the restructuring and development of various sectors ... of the Belgian economy" .
Article 5(1) of the decree provides that
" the State guarantee is granted by this decree on the total amount, principal, interest and premiums, of the bonds to be issued and the borrowings to be made by Belfin in connection with its task as defined in Article 2" .
Article 5(2) adds that
" [t]he total amount in principal of the bonds issued and the borrowings made which are covered by the State guarantee may not at any time exceed the sum of 30 000 million Belgian francs" .
113. The Belfin Shareholders ' Agreement explains and expands the provisions established by the Royal Decree of 29 June 1981.
Article 8 stipulates that
" Belfin will have the task of undertaking to pay, mainly through borrowings, up to three successive instalments of 10 000 million Belgian francs each ... .
It will lend those amounts to the borrowers [who are] designated ... the final beneficiaries" .
Article 9 of the Agreement provides that
" [100% guarantee, right from the start, for all the borrowings ─ principal, interest and premiums ─ made by Belfin during the 10 years ..., all Belfin ' s lenders being treated on an equal footing" .
The same provision states that
" [t]he State undertakes to give Belfin, for each borrowing it makes ... a letter of guarantee, in accordance with the lender ' s requirements, within five working days of being requested to do so by Belfin" .
114. Finally, Supplementary Agreement No 3 to the Shareholders ' Agreement was signed on 25 April 1994 in order to allow the rescheduling of some of the debts of Forges de Clabecq.
It states that:
" In connection with a joint effort by Forges de Clabecq ' s long-term financial backers ... Belfin has been invited to extend a loan of BEF 200 million with a due date of 8 May 1994.
In order to carry out that financing, Belfin is authorised, notwithstanding Article 9 of the Agreement ..., to contract, with the guarantee of the Belgian State, a borrowing of BEF 200 million for a term of 7 years and to lend the said sum back to back for the same term and on the same conditions to Forges de Clabecq."
115. As for the letter of 25 June 1996,
(92) that served as a basis for the finding by the Court of First Instance that the Belfin loans were covered by a State guarantee. The letter states that:
" After deliberation, the Board [of Directors of Belfin] unanimously authorises Mr P. Gérardin to negotiate a deferral of three years in the timetable for repayment of the principal sum of the loans granted to Forges de Clabecq by Belfin, on the basis that an agreement on that matter shall be in any case subject to the following conditions:
1. ...
2. ...
3. ...
4. Agreement of the State (public loan) to extend its guarantee to the deferred due dates.
"
116. Unlike the Court of First Instance, I do not think that the abovementioned letter contradicts the other evidence adduced by the appellant.
117. Admittedly,
taken out of context, that letter may lead to the conclusion that the State guarantee related to the Belfin loans.
The introductory paragraph and point 4 of the letter use terms which seem to give that impression.
Since the introductory paragraph refers to a
" deferral"
of the repayment of the loans granted to Forges de Clabecq, point 4, by making that deferral subject to the condition that the State extend its guarantee to the
" deferred due dates", allows the assumption that the State guarantee attaches to the loans granted by Belfin.
118. However, the letter in question need only be compared with the other evidence submitted by the Kingdom of Belgium to establish that point 4 refers to the due dates of the borrowings made by Belfin.
It is apparent from the documents submitted by the appellant
(93) that Belfin ' s statutory task is to ensure financing for investment in several sectors of the economy. In order to do this, Belfin borrows money from financial institutions and, in turn, lends those sums to beneficiary undertakings.
Under Belgian law, the State guarantee is granted automatically to cover the borrowings made by Belfin.
It follows that borrowings made in order to provide the financing correspond to the loans granted by Belfin.
Supplementary Agreement No 3 to the Belfin Shareholders ' Agreement, signed on 25 April 1994, states that, when Belfin is invited to
" extend a loan", it is, at the same time,
" authorised ... to make a borrowing, with the guarantee of the Belgian state_"
for the same amount.
119. The symmetry between the Belfin loans and the
" Belfin borrowings"
therefore makes it possible to make sense of point 4 of the letter of 25 June 1996. Since, in order to defer the due dates of the loans it has granted to Forges de Clabecq, it must negotiate a deferral of the due dates on its own borrowings with the financial institutions, Belfin made its agreement conditional on the Belgian State extending its guarantee
" to cover that deferral" .
It is clear that, placed in context and in the light of the other evidence submitted by the appellant, point 4 of the letter of 25 June 1996 relates to the due dates of the borrowings made by Belfin and not to the due dates of the loans granted to Forges de Clabecq.
120. In those circumstances, I consider that the Court of First Instance could not take the letter of 25 June 1996 as the sole basis for its conclusion that the State guarantee related to the Belfin loans. By basing its conclusion on that document, when three other documents contradicted that interpretation, the Court distorted the other evidence submitted to it by the Belgian Government.
I therefore propose that the Court of Justice, on this fourth ground, should set aside the contested judgment.
2. Second plea: infringement of Articles 30 and 46 of the ECSC Statute
(a) Arguments of the parties
121. In the second plea, the Kingdom of Belgium and Belfin claim that the grounds of the contested judgment are inadequate.
122. They point out that, before the Court of First Instance, the Belgian Government had objected to the contested decision in that it stated that the State guarantee covering the borrowings made by Belfin constituted State aid.
(94)
The appellant had explained that the State guarantee for the amounts borrowed by Belfin was always counter-guaranteed by the final beneficiaries of the loans.
Indeed, under Article 11 of the Belfin Shareholders ' Agreement, the beneficiaries are required to contribute to a
" Guarantee Fund"
established at Belfin. Furthermore, under Article 10 of the Agreement, actions by the State against Belfin on the ground of calls against the guarantee for the amounts borrowed are set against the amounts constituting the
" Guarantee Fund" .
In those circumstances, the appellant considered that, even if the Belfin loans were covered by guarantee, that guarantee was a private guarantee and did not constitute State aid.
123. However, in paragraph 70 of the contested judgment, the Court of First Instance merely stated that
" [t]he fact that State guarantees constitute State aid may also no longer effectively be denied" .
The appellant and the intervener consider that that assessment is not sufficiently reasoned.
(b) Assessment
124. In points 66 to 68 of this Opinion, I have set out the principles which may, in my view, define the content of the obligation of the Court of First Instance to state reasons.
125. I stated that the grounds of a judgment must disclose in a clear and unequivocal fashion the reasoning followed by the Court of First Instance, in such a way as to enable the persons concerned to ascertain the reasons for the decisions taken and to enable the Court of Justice to carry out its review.
However, the grounds of a judgment must be assessed in the light of the circumstances of the case.
The Court of First Instance is not obliged to respond to arguments which are not
" sufficiently clear and precise"
or are clearly of secondary importance.
126. In the present case, I consider that paragraph 70 of the contested judgment does not fulfil these requirements for stating reasons.
127. The concept of
" aid", referred to in Article 4(c) of the ECSC Treaty, is
" wider than that of a subsidy because it embraces not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking" .
(95)
128. The Court has also held
(96) that the expression aid
" ... necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose" .
(97)
It is apparent that not all the advantages granted by a State necessarily constitute State aid.
Only advantages granted directly or indirectly through State resources are to be regarded as
" aid"
within the meaning of Article 4(c) of the ECSC Treaty.
129. In the present case, the Court of First Instance did not state the specific reasons why the State guarantees on the borrowings made by Belfin were advantages granted directly or indirectly through State resources.
It merely stated, in general terms, that the fact that State guarantees constituted State aid may not be denied.
130. However, the Kingdom of Belgium had formally disputed the contested decision on that point.
(98)
It had maintained that, because of the commissions paid to the
" Guarantee Fund"
by the final beneficiaries of the Belfin loans, the Belgian State guarantees on the borrowings made by Belfin were not granted through State resources, but through private resources.
Furthermore, the observations lodged by the Commission confirmed that the examination of that argument required some explanation.
The Commission refuted at length the Belgian Government ' s argument, claiming that the counter-guarantee mechanism instituted by the Belfin Shareholders ' Agreement was a
" smokescreen" .
(99)
131. In those circumstances, I consider that the Court of First Instance failed to fulfil its obligation to state reasons.
On this fifth ground, I therefore propose that the Court set aside the contested judgment.
VI ─ Transfer of the case following annulment
132. The first paragraph of Article 54 of the ECSC Statute provides that, if the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance.
In that event, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.
133. In the present case, I consider that the state of the proceedings does so permit and therefore propose that the Court of Justice transfer the case to itself and give final judgment in the matter.
VII ─ The substance of the case
134. The Kingdom of Belgium seeks the annulment of the contested decision in so far as it refers to
" [t]he State guarantees in respect of the Belfin and SNCI loans and their extension to the postponed due dates" .
(100)
135. In support of its claims, it raises four pleas for annulment.
Those pleas allege: (1) infringement of the obligation to state reasons; (2) infringement of the decisions of 1982 and 1985; (3) infringement of Article 6 of the Aid Code, and (4) manifest error of assessment and infringement of Article 4(c) of the ECSC Treaty.
1. First plea: infringement of Article 15 of the ECSC Treaty
136. The Kingdom of Belgium claims that the contested decision is not adequately reasoned in the light of Article 15 of the ECSC Treaty.
(101)
The Commission criticised the
" SNCI and Belfin loans"
without stating which precise loans it was referring to.
The Kingdom of Belgium considers that, in the absence of those precise details, it is impossible to understand the operative part of the contested decision, which states that
" Belgium is required to abolish the aid measures referred to in Article 1 and demand that the illegal aid already paid be reimbursed."
137. In paragraphs 51 to 62 of this Opinion, I have stated the reasons why the contested decision is adequately reasoned on that point.
It supports the conclusion that the Commission criticised the State guarantees attaching to the second instalment of the first SNCI loan (BEF 680 million), to the fourth SNCI loan (BEF 650 million) and to the two Belfin loans (BEF 300 million and BEF 200 million). Consequently, I propose that the Court of Justice reject the first plea for annulment.
2. Second plea: infringement of the decisions of 1982 and 1985
138. The Kingdom of Belgium points out that the decisions of 1982 and 1985 had authorised the State guarantees attaching to the first and fourth SNCI loans.
(102) The Commission had declared that those measures were legal and compatible with the common market.
139. However, in the contested decision, the Commission re-examined the same measures in the light of the provisions of the Code.
It described them as aid which was illegal and incompatible with the common market.
The Kingdom of Belgium considers that, by so doing, the Commission infringed its previous decisions.
140. When examining the appeal, I concluded that the contested decision was not adequately reasoned on that point.
(103)
141. I found that the 1982 decision had authorised the Belgian Government to constitute a State guarantee in respect of the first SNCI loan for BEF 1 500 million.
Similarly, the 1985 decision followed a notification from the Belgian authorities of 31 May 1985
(104) and authorised them to co nstitute a guarantee in respect of the fourth SNCI loan for BEF 650 million.
142. It is not in dispute that, in the contested decision, the Commission altered that assessment.
It held that:
" The provision of a State guarantee in respect of a loan normally constitutes State aid, which should have been notified to the Commission and should not have been put into effect without the latter ' s approval ... .
These rules were not complied with in the case of the loans granted to Forges de Clabecq" . (105)
143. However, contrary to the requirements of the case-law,
(106) the contested decision does not give the reasons why the Commission revoked its decisions of 1982 and 1985.
It does not contain any indication why the Commission retrospectively cancelled authorisation for the State guarantees approved in 1982 and 1985.
144. Since the contested decision does not enable the persons concerned to ascertain the reasons for the measure or enable the Court of Justice to carry out its review, it is not adequately reasoned in the light of Article 15 of the ECSC Treaty.
145. In actual fact, the reasons why the Commission went back on its previous decisions were revealed at the appeal stage.
In its response,
(107) the Commission claimed that the Belgian authorities could not rely on the decisions of 1982 and 1985 on the ground that they had made significant modifications to the rules for repayment of the SNCI loans.
It is clear that such an explanation ─ even if it were founded ─ is too late and cannot properly
" remedy"
the lack of a statement of reasons for the contested decision.
I therefore propose that the Court of Justice annul that decision for failure to state reasons.
146. Under Article 34 of the ECSC Treaty, the Commission is required to take the necessary steps to comply with the judgment to be given.
It will therefore have to satisfy itself, in particular, that the Belgian authorities have observed the conditions laid down in the decisions of 1982 and 1985.
If that is not the case, the Commission may decide to revoke those decisions.
However, such revocation must be in compliance with the rules of procedure laid down by the ECSC Treaty and the Steel Aid Codes.
(108)
3. Third plea: infringement of Article 6 of the Aid Code
147. In the light of the conclusions I have reached, an examination of the other pleas for annulment is not warranted.
If, as I believe, the contested decision should be annulled on the ground that the Commission infringed Article 15 of the ECSC Treaty, the other pleas put forward by the Kingdom of Belgium are irrelevant.
It is therefore in the alternative that I shall continue with my examination.
148. The Kingdom of Belgium criticises the Commission for describing as illegal aid the extension for a further three-year period of the State guarantees attaching to the SNCI and Belfin loans.
It considers that that assessment is incorrect since the extension at issue was notified to the Commission on 25 June 1996 and was never implemented, in accordance with Article 6(2) and (4) of the Code.
(109)
149. On that point, I should reiterate that the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted.
(110)
The Court of Justice has held that a Member State, in order to contest the legality of a decision concerning State aid, may not rely on evidence which it has not brought to the Commission ' s attention in the course of the administrative procedure.
(111)
This is clearly the situation where the State has refused to respond to an express request for information from the Commission. (112)
150. It should also be pointed out that, under Article 5 of the EC Treaty (now Article 10 EC), Member States are under an obligation to cooperate in the implementation of Article 93 of the EC Treaty.
(113)
That obligation to cooperate requires Member States to provide the Commission with all information required to allow the Commission to carry out its duties
(114) and, in particular, to enable it to assess whether the aid in question is compatible.
(115)
A Member State which does not fulfil its duty of cooperation during the administrative stage cannot subsequently charge the Commission with having made a manifest error of assessment or having given insufficient reasons for its decision.
(116)
151. The same principles apply to steel aid since Article 86 of the ECSC Treaty imposes on Member States a duty to cooperate in good faith comparable to that established by Article 5 of the EC Treaty.
152. I shall therefore examine whether, in the light of the information communicated by the Belgian authorities in the course of the administrative procedure, the Commission committed a manifest error by considering that the extension of the State guarantees attaching to the SNCI and Belfin loans
(117) was implemented without the Commission ' s prior authorisation.
153. The file submitted by the Belgian authorities in the course of the administrative stage contained several documents.
A first series of documents
(118) recorded the agreement between SNCI and Belfin to defer for a period of three years the due dates of the loans that they had granted to Forges de Clabecq.
They showed that the agreement of the financial institutions was subject to the condition that the Belgian authorities agreed to maintain and extend the State guarantee to the deferred due dates.
However, none of those documents supported the conclusion that the Belgian authorities had already extended the guarantees in question.
On the other hand, a second series of documents
(119) showed that the Belgian Minister for Finance had accepted the proposal of the financial institutions.
(120) They revealed that the competent minister had signed a supplementary agreement to the loan agreement between Belfin and Forges de Clabecq
(121) allowing the due dates to be deferred to 16 December 1996.
154. On the basis of that information, the Commission considered that the Belgian authorities had already extended the guarantees in question at the time of the notification of 25 June 1996.
It therefore took that fact into account in its decision to initiate the investigative procedure, stating that
" the renegotiation of the long-term debts (due dates deferred for three years and lowering of interest rates) [had] already taken place" .
(122)
155. At no time during the administrative procedure did the Belgian authorities dispute the Commission ' s assessment.
Although they lodged observations on the letter of formal notice,
(123) the Belgian authorities never denied that the extension of the guarantees in question had already taken place before the notification of 25 June 1996.
156. It follows that, in the light of the information communicated by the Belgian authorities in the course of the administrative procedure, the Commission could rightly consider that the extension of the State guarantees had been carried out without its prior authorisation.
157. In those circumstances, the Commission did not commit any manifest error of assessment by describing the contested measure as illegal aid.
The third plea raised by the Kingdom of Belgium should therefore be rejected.
4. Fourth plea: manifest error of assessment and infringement of Article 4(c) of the ECSC Treaty and Article 1(2) of the Aid Code
158. The Kingdom of Belgium maintains that the Commission committed a manifest error of assessment by finding that the Belfin loans were covered by a State guarantee.
(124)
It states that only the borrowings
made by Belfin from the banks are covered by such a guarantee, and not the loans
granted by Belfin to the beneficiary undertakings.
The Commission ' s error is all the less justifiable since it knew of Belfin ' s intervention mechanism through a prior notification relating to aid granted to the undertaking Cockerill-Sambre.
(125)
In the alternative, the Belgian Government considers that the Commission infringed Article 4(c) of the ECSC Treaty by holding that the guarantees in question constituted State aid.
It states that the State guarantee for the amounts borrowed by Belfin is always counter-guaranteed by the final beneficiaries of the loans. Indeed, under Article 11 of the Belfin shareholders ' agreement, the beneficiaries are required to contribute to a
" Guarantee Fund"
established at Belfin. Furthermore, under Article 10 of the agreement, actions by the State against Belfin on the ground of calls against the guarantee for the amounts borrowed, are set against the amounts constituting the
" Guarantee Fund" .
Therefore, even if the Belfin loans were covered by guarantee, that guarantee was a private guarantee and did not constitute State aid.
159. In my examination of the appeal, I proposed that the contested judgment be set aside on the ground that the Court of First Instance had distorted the evidence presented by the Kingdom of Belgium.
(126)
That evidence shows, in my view, that the State guarantee related to the borrowings made by Belfin, and not the loans granted by Belfin.
160. However, the same conclusion cannot be transposed to the assessment made by the Commission in the contested decision.
161. I have established that the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted.
(127)
I have also stated
(128) that the obligation to cooperate, imposed by Article 86 of the ECSC Treaty, requires Member States to provide the Commission with all information required to enable it to assess whether the aid in question exists and is compatible.
A Member State which does not fulfil its duty of cooperation during the administrative stage cannot subsequently charge the Commission with having made a manifest error of assessment.
162. In the present case, the Belgian authorities did not adduce any evidence enabling the Commission to know that only the borrowings made by Belfin were covered by a State guarantee.
On the contrary, it is clear from the file submitted by the Belgian authorities in the course of the administrative procedure that the Commission could rightly consider that the State guarantee related to the Belfin loans.
163. That file contained the following documents.
164. First, a letter dated 19 June 1996 from the Belgian Minister for Finance to Belfin
(129) stating that:
" With regard to Forges de Clabecq, I can already tell you that, as far as the government is concerned, the principle of deferring repayment of the sums ... for three years is justifiable, if it forms part of a general restructuring scheme, which will give the undertaking a chance of survival.
That applies to the Belfin loans, as well as to the [SNCI] loans covered by State guarantee." (130)
165. Secondly, the letter of 25 June 1996 from Belfin to Forges de Clabecq
(131) stated that:
" After deliberation, the Board [of Directors of Belfin] unanimously authorises Mr P. Gérardin to negotiate a deferral of three years in the timetable for repayment of the principal sum of the loans granted to Forges de Clabecq by Belfin, on the basis that an agreement on that matter shall be in any case subject to the following conditions:
1. ...
2. ...
3. ...
4. Agreement of the State (public loan) to extend its guarantee to the deferred due dates.
"
166. Finally, the letter addressed on 25 June 1996 by the Ministry of Finance to the Prime Minister of the Walloon Government
(132) stated:
" Further to our telephone conversation today, I confirm that
1. the due dates of 15/12/95 of the SNCI loans guaranteed by the State are suspended until 16 December 1996 (cf. copy in Appendix);
2. that also applies to the due date of 9 May 1996 for the Belfin loan (cf. Appendix).
Until 16 December 1996, there is therefore no problem for the State guarantee ... .
As regards the deferral for a three-year period of the due dates of the long-term loans ..., Belfin has already taken a decision in principle.
As for the State ' s position, the Government ... takes the view that deferral is justified ... on condition that all the elements of the restructuring scheme are put in place ... . As soon as that is the case, the Government will submit the file for the approval of the Minister for Finance, with a favourable opinion.
"
167. I think that these various factors,
taken out of the context
which I have described in these proceedings, may reasonably have led the Commission to consider that the Belgian State guarantee covered the loans granted by Belfin.
168. Furthermore, contrary to what the Belgian Government claims, the documents in the case do not support the conclusion that the Commission knew of Belfin ' s intervention mechanism before the notification of 25 June 1996. Admittedly, the wording of the decision of 29 June 1983
(133) proves that the Commission was called upon to assess the compatibility of investment aid for the steel undertaking Cockerill-Sambre.
However, there is nothing to show that the restructuring scheme was partially financed by the Belgian Fund for Financing Industry, which subsequently became Belfin.
169. In those circumstances, I consider that, in the light of the information available to it, the Commission did not commit a manifest error of assessment by holding that the Belfin loans were covered by a Belgian State guarantee.
170. The Kingdom of Belgium ' s alternative line of argument should be rejected for similar reasons.
It is apparent from the documents submitted to the Court of Justice that at no time during the administrative procedure did the Belgian authorities describe the existence and operation of the counter-guarantee mechanism established by the Belfin Shareholders ' Agreement.
The Kingdom of Belgium cannot therefore reasonably accuse the Commission of infringing Article 4(c) of the ECSC Treaty by holding that the State guarantees constituted State aid.
171. I therefore propose that the Court of Justice reject the fourth plea for annulment.
VIII ─ Costs
172. Article 122 of the Rules of Procedure provides that, where the appeal is well founded and the Court itself gives final judgment in the case, the Court shall make a decision as to costs.
173. Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party”s pleadings.
Under Article 69(3), where each party fails on one or more heads, the Court may order that the costs be shared.
Article 69(4) allows the Court to order an intervener to bear its own costs.
174. In the present case, I have established that almost all the pleas of the appeal were well founded.
On the other hand, only the examination of one of the four pleas raised at first instance revealed grounds for annulling the contested decision.
I therefore consider that it is fair to decide that the Commission shall bear, as well as its own costs, the costs incurred by the Kingdom of Belgium and by Belfin in the appeal proceedings.
As to the remainder, I see no reason to amend the operative part of the contested judgment or to depart from the Rules of Procedure.
IX ─ Conclusion
175. In the light of the foregoing considerations, I therefore propose that the Court of Justice declare and order as follows:
(1) The judgment of the Court of First Instance of 25 March 1999 in Case T-37/97
Forges de Clabecq
v
Commission
is set aside.
(2) Commission Decision 97/271/ECSC of 18 December 1996, ECSC Steel ─ Forges de Clabecq, is annulled in so far as it refers to State guarantees in respect of the loans granted by the Société nationale de crédit à l ' industrie (SNCI) to Forges de Clabecq SA.
(3) The Commission of the European Communities shall bear, as well as its own costs, the costs incurred by the Kingdom of Belgium and by the Compagnie belge pour le financement de l ' industrie SA (Belfin) in connection with the appeal proceedings.
(4) The Kingdom of Belgium shall bear the costs it incurred in the proceedings before the Court of First Instance.
(5) Forges de Clabecq SA, the Walloon Region and the Société wallonne pour la sidérurgie SA (SWS) shall bear their own costs.
(1) .
(2) Decision 97/271/ECSC, ECSC steel ─ Forges de Clabecq (OJ 1997 L 106, p. 30, hereinafter
" the contested decision" ).
(3) A total of four actions were brought before the Court. The first was brought by the Fédération générale des travailleurs de Belgique, Centrale professionnelle des métallurgistes du Brabant (CMB), and by the Syndicat des employés techniciens et cadres du Brabant-wallon (SETCA). It was removed from the register by Order of the President of the Court of First Instance in Case T-2/97
CMB and SETCA
v
Commission
[1997], not published in the European Court Reports, after the applicants discontinued the proceedings. The second action, brought by two union officials from Forges de Clabecq, was declared inadmissible (Case T-4/97
D ' Orazio and Hublau
v
Commission
[1997] ECR II-1505). The third action was brought by the Walloon Region before the Court of Justice which declared that it had no jurisdiction and referred the matter to the Court of First Instance (Order of 21 March 1997 in Case C-95/97
Région wallonne
v
Commission
[1997] ECR I-1787). By order of 29 September 1997, the Court of First Instance subsequently declared the action inadmissible (Case T-70/97
Région wallonne
v
Commission
[1997] ECR II-1513). Finally, the fourth action was brought by Forges de Clabecq, supported by the Kingdom of Belgium, the Walloon Region and the Société wallonne pour la sidérurgie SA (SWS). It was dismissed by the judgment of the Court of First Instance which is the subject of this appeal.
(4) Case T-37/97
Forges de Clabecq
v
Commission
[1999] ECR II-859 (hereinafter
" the contested judgment" ).
(5) OJ 1991 L 362, p. 57 (hereinafter
" the Code"
or
" the Aid Code" ).
(6) Articles 2 to 5 of the Code provide that aid for research and development, aid to protect the environment, aid granted for closure and certain regional aid may be deemed compatible with the common market.
(7) Otherwise referred to as the
" SNCI loans" .
(8) Those decisions were not published in the
Official Journal of the European Communities . They appear in Annexes 12 and 15 to the statement in intervention lodged by the Kingdom of Belgium before the Court of First Instance in Case T-37/97 (hereinafter
" the statement in intervention" ).
(9) Otherwise referred to as the
" Belfin loans" .
(10) That loan cancelled and replaced two previous loans granted in 1988 and 1989.
(11) That loan cancelled and replaced a previous loan granted in 1987.
(12) Communication 96/C 301/03 (OJ 1996 C 301, p. 4).
(13) Namely, a capital injection of BEF 1 500 million, the waiver of claims amounting to BEF 802.3 million, the granting of bridging loans totalling BEF 700 million and the rescheduling of the debts of Forges de Clabecq.
(14) Point V of the contested decision, entitled
" Rescheduling of debts", final paragraph.
(15) Order of the Court of First Instance of 31 October 1997 in Case T-37/97
Forges de Clabecq
v
Commission, not published in the European Court Reports.
(16) Point V of the contested decision, entitled
" Rescheduling of debts", final paragraph.
(17) The first paragraph of Article 15 of the ECSC Treaty provides that
" [d]ecisions, recommendations and opinions of the Commission shall state the reasons on which they are based and shall refer to any opinions which are required to be obtained" .
(18) Paragraph 104 of the contested judgment.
(19) Paragraphs 84 to 86 of the contested judgment.
(20) Statement in intervention (paragraphs 30 to 32).
(21) Paragraphs 51 and 52 of the contested judgment.
(22) Case C-197/99 P
Belgium
v
Commission, not published in the European Court Reports.
(23) Appeal.
(24) Point 6 of the Appeal.
(25) Ibid., point 4.
(26) Ibid., point 6.
(27) See, by analogy, Case C-367/95 P
Commission
v
Sytraval and Brink ' s France
[1998] ECR I-1719, paragraphs 65 to 72.
(28) Hereinafter
" the ECSC Statute" .
(29) As regards the obligation to state reasons under Article 33 of the EC Statute of the Court of Justice, see, in particular, the judgment in Case C-153/96 P
De Rijk
v
Commission
[1997] ECR I-2901, paragraphs 35 to 38.
(30) See Case C-166/95 P
Commission
v
Daffix
[1997] ECR I-983, paragraphs 27 to 38; Case C-188/96 P
Commission
v
V
[1997] ECR I-6561, paragraphs 26 to 30, and Joined Cases C-76/98 P and C-77/98 P
Ajinomoto and Nutrasweet
v
Council and Commission
[2001] ECR I-3223, paragraphs 48 to 51.
(31) Paragraph 110 of the contested judgment.
(32) Namely, the initial loan for BEF 1 500 million, the second loan for BEF 850 million, the third loan for BEF 1 500 million and the fourth loan for BEF 650 million.
(33) Which cancelled and replaced the previous loans for BEF 104 million and BEF 196 million.
(34) Which cancelled and replaced the previous loan granted in 1987.
(35) Commission
v
Daffix, cited above, paragraphs 19 to 39, and
Ajinomoto and Nutrasweet
v
Council and Commission, cited above, paragraph 48.
(36) Judgment in
Commission
v
V, paragraph 24.
(37) Joined Cases 296/82 and 318/82
Netherlands and Leeuwarder Papierwarenfabriek
v
Commission
[1985] ECR 809, paragraph 19; Case C-350/88
Delacre and Others
v
Commission
[1990] ECR I-395, paragraphs 15 and 16;
Commission
v
Sytraval and Brink ' s France, cited above, paragraph 63, and Case C-265/97 P
VBA
v
Florimex and Others
[2000] ECR I-2061, paragraph 93.
(38) See, in particular, Joined Cases 172/83 and 226/83
Hoogovens Groep
v
Commission
[1985] ECR 2831, paragraph 24, Case T-57/91
NALOO
v
Commission
[1996] ECR II-1019, paragraphs 298 to 300, and Case T-243/94
British Steel
v
Commission
[1997] ECR II-1887, paragraph 160.
(39) Case C-56/93
Belgium
v
Commission
[1996] ECR I-723, paragraph 87.
(40) Cited above, fourth paragraph.
(41) Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97.
(42) Annex 12 to the aforementioned letter of 23 July 1996.
(43) Idem.
(44) Idem.
(45) Point 5, reproduced in point 34 of this Opinion.
(46) However, the foregoing considerations reveal that the contested judgment contains an error in law which was not raised by the Kingdom of Belgium. I have established that, according to the Court of First Instance, the Commission had criticised the State guarantees attaching to all the SNCI and Belfin loans. Yet we have seen that the contested decision had a more limited scope, referring only to the State guarantees attaching to the second instalment of the first SNCI loan, to the fourth SNCI loan and to the two Belfin loans. The Court of First Instance therefore committed a manifest error in identifying the SNCI and Belfin loans covered by the contested decision. That error is likely to cause practical difficulties when the contested decision is implemented. Although the Commission requires the Belgian authorities to recover only the amount of aid contained in the four aforementioned guarantees, paragraph 110 of the contested judgment may lead to the repayment of the aid relating to all the guarantees.
From the point of view of legal characterisation, the error made by the Court of First Instance constitutes an infringement of Article 33 of the ECSC Treaty. The Court, by substituting its own reasoning for that of the Commission, distorted the content of the contested decision. It thereby exceeded the limits of its competence under Article 33 of the ECSC Treaty in respect of its review of the legality of the Commission ' s decisions (see, in support of this, Case C-164/98 P
DIR International Film and Others
v
Commission
[2000] ECR I-447, paragraphs 38 to 49). Since this is a plea concerning the competence of the author of the contested measure, the Court of Justice could, of its own motion, raise and penalise the error made by the Court of First Instance (see, by analogy, Case 19/58
Germany
v
High Authority
[1960] ECR 225; and Case C-210/98 P
Salzgitter
v
Commission
[2000] ECR I-5843, paragraph 56). However, since I am going to suggest that the Court of Justice set aside the contested judgment on other grounds (see point 64 et seq. of this Opinion), I do not need to expand my arguments on this point.
(47) See, in support of this, the judgments in Case C-259/96 P
Council
v De Nil and Impens
[1998] ECR I-2915, paragraphs 32 to 34, and in Case C-449/98 P
IECC
v
Commission
[2001] ECR I-3875, paragraph 70, and the orders in Case C-149/95 P(R)
Commission
v
Atlantic Container Line and Others
[1995] ECR I-2165, paragraph 58, Case C-268/96 P(R)
SCK and FNK
v
Commission
[1996] ECR I-4971, paragraph 52, and Case C-159/98 P(R)
Netherlands Antilles
v
Council
[1998] ECR I-4147, paragraph 70.
(48) Case C-274/99 P
Connolly
v
Commission
[2001] ECR I-1611.
(49) Ibid., paragraph 120.
(50) Ibid., paragraph 121.
(51) Opinion in
Connolly
v
Commission, cited above, point 61.
(52) Judgment in
Connolly
v
Commission, cited above, paragraph 121.
(53) See, by analogy, the judgment in
Sytraval and Brink ' s France, cited above, paragraph 64.
(54) Cited above.
(55) Statement in intervention, points 32 and 45.
(56) Annex 3 to the application lodged by Forges de Clabecq in Case T-37/97.
(57) In respect of the prohibition contained in Article 93(3) of the EC Treaty (now Article 88(3) EC), see the judgments in Case 6/64
Costa
[1964] ECR 585 and in Case 120/73
Lorenz
[1973] ECR 1471, paragraph 8. In respect of the prohibition contained in the current Aid Code for the Coal Industry [Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the coal industry (OJ 1993 L 329, p. 12)], see the judgment in Case C-390/98
Banks
[2001] ECR I-6117, paragraphs 69 and 70.
(58) Case C-354/90
Fédération national du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon
[1991] ECR I-5505, paragraph 12, Case C-39/94
SFEI and Others
[1996] ECR I-3547, paragraph 40, and
Banks, cited above, paragraph 73.
(59) Fédération national du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon, paragraphs 12 and 13, and
SFEI and Others, paragraphs 40 and 43.
(60) Fédération national du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon, paragraph 12, and
SFEI and Others, paragraph 40.
(61) Commission Notice 2000/C 71/07 on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (OJ 2000 C 72 p. 14, points 6.4 and 6.5).
(62) Joined Cases C-46/93 and C-48/93
Brasserie du pêcheur and Factortame
[1996] ECR I-1029, paragraph 51.
(63) See, in support of this, Keppenne, J-P.,
Guide des aides d ' État en droit communautaire, Bruylant, Brussels, 1999, point 408.
(64) See also, in support of this, Waelbroeck, M., and Frignani, A.,
Commentaire J. Megret, Le droit de la CE, volume 4, Concurrence, éditions de l ' université de Bruxelles, Brussels 1997, 2nd ed., point 319.
(65) See the Opinion of Advocate General Tesauro in Case C-142/87
Belgium
v
Commission, known as
" the
Tubemeuse
case"
[1990] ECR I-959, I-985.
(66) See the Opinion of Advocate General Jacobs in
SFEI and Others, cited above, point 77. Advocate General Jacobs cites the example of competitors who have lost profits and market shares as a result of the immediate payment of the aid.
(67) Paragraphs 97 to 101 of the contested judgment.
(68) See, in particular, Case 18/57
Nold
v
High Authority
[1959] ECR 41; Case 185/85
Usinor
v
Commission
[1986] ECR 2079, paragraph 19;
Commission
v
Daffix, cited above, paragraph 24; Case T-106/95
FFSA and Others
v
Commission
[1997] ECR II-229, paragraph 62, and Case T-4/96
S
v
Court of Justice
[1997] ECR II-1125, paragraph 53.
(69) See, in support of this, the judgment in
Salzgitter
v
Commission, cited above, paragraphs 56 and 57.
(70) Annex 13 to the statement in intervention, point 1.2.2.
(71) Point V of the contested decision, under the heading
" Rescheduling of debts", third and fourth paragraphs.
(72) See points 51 to 53 of this Opinion.
(73) See, in support of this,
DIR International Film and Others
v
Commission, cited above, paragraphs 38 to 49 and Case C-428/98 P
Deutsche Post
v
IECC and Commission
[2000] ECR I-3061, paragraph 28. See, also, Case C-225/91
Matra
v
Commission
[1993] ECR I-3203, paragraph 23;
FFSA and Others
v
Commission, cited above, paragraph 101, and Joined Cases T-298/97, T-312/97, T-313/97, T-315/97, T-600/97 to T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98
Alzetta and Others
v
Commission
[2000] ECR II-2319, paragraph 42.
(74) Annex 9 to the statement in intervention.
(75) Annex 10 to the statement in intervention.
(76) Commission Decision No 2320/81/ECSC of 7 August 1981 establishing Community rules for aid to the steel industry ( " the Second Steel Aid Code" )_OJ 1981 L 228, p. 14.
(77) Annex 11 to the statement in intervention.
(78) This was a 7% reduction in interest over five years on an amount of BEF 783 million, tax assistance such as exemption from real property deduction for three years and the opportunity to make repayments before the due date, as well as the State guarantee which was to attach to part of the second loan for BEF 850 million (see the 1982 decision, p. 2).
(79) Paragraph 100 of the contested judgment.
(80) We may, moreover, question the legality of such a condition or express prohibition on that point. Indeed, although Article 4(c) of the ECSC Treaty prohibits State aid, the scheme established by the various Steel Aid Codes authorises Member States to request the Commission to declare a measure compatible with the common market in coal and steel. The Commission has sole jurisdiction in that respect, and makes an assessment on a case by case basis, taking into account the circumstances of the case in point. It is therefore unlikely ─ if not illegal ─ for the Commission, in a decision approving the measure, to be able to make its assessment definitively binding for all subsequent interventions of a Member State in respect of an undertaking, without even examining the reasons which lead the State concerned to make a new request for authorisation.
(81) Furthermore, the 1985 decision does not contain any reference to the 1982 decision.
(82) See, in particular, Case C-283/90 P
Vidrányi
v
Commission
[1991] ECR I-4339, paragraph 12 and Case C-53/92 P
Hilti
v
Commission
[1994] ECR I-667, paragraph 10.
(83) Judgments in Case C-136/92 P
Commission
v
Brazzelli Lualdi and Others
[1994] ECR I-1981, paragraph 49, and
VBA
v
Florimex and Others, cited above, paragraph 139; orders in Case C-59/96 P
Koelman
v
Commission
[1997] ECR I-4809, paragraph 33, and Case C-55/97 P
AIUFASS and AKT
v
Commission
[1997] ECR I-5383, paragraph 24.
(84) Judgments in Case C-8/95 P
New Holland Ford
v
Commission
[1998] ECR I-3175, paragraph 72, and
VBA
v
Florimex and Others, cited above, paragraph 139, and order in Case C-341/98 P
Proderec
v
Commission
[2000], not published in the European Court Reports, paragraph 27.
(85) See, in particular, the judgments in
Commission
v
Brazzelli Lualdi and Others, cited above, paragraph 66; Case C-401/96 P
Somaco
v
Commission
[1998] ECR I-2587, paragraph 54, and Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417, paragraph 24.
(86) Judgments in
Hilti
v
Commission, cited above, paragraph 42; Case C-362/95 P
Blackspur DIY and Others
v
Council and Commission
[1997] ECR I-4775, paragraph 29;
New Holland Ford
v
Commission, cited above, paragraph 26;
Baustahlgewebe
v
Commission, cited above, paragraph 24; Case C-257/98 P
Lucaccioni
v
Commission
[1999] ECR I-5251, paragraphs 45 to 47; and orders in
AIUFASS and AKT
v
Commission, cited above, paragraph 25; Case C-140/96 P
Dimitriadis
v
Court of Auditors
[1997] ECR I-5635, paragraph 35, and
Proderec
v
Commission, cited above, paragraph 28.
(87) Statement in intervention, points 34 to 37.
(88) Ibid, points 16, 18, 35, 36, 37, 38 and 39.
(89) Moniteur belge
of 10 July 1981 (Annex 17 to the statement in intervention).
(90) Annex 18 to the statement in intervention.
(91) Annex 18 to the statement in intervention.
(92) Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97.
(93) Namely, the Royal Decree of 29 June 1981 establishing a Belgian Company for the Financing of Industry, the Belfin Shareholders ' Agreement of 31 July 1981 and Supplementary Agreement No 3 to that Agreement signed on 25 April 1994, cited in points 110 to 114 of this Opinion.
(94) Paragraph 52 of the contested judgment.
(95) Case 30/59
De Gezamenlijke Steenkolenmijnen in Limburg
v
High Authority
[1961] ECR 1, 39.
See, also, the judgment in
Banks, cited above, paragraph 30.
(96) Case C-200/97
Ecotrade
[1998] ECR I-7907, paragraph 34. See also Case 82/77
Van Tiggele
[1978] ECR 25, paragraphs 23 to 25; Joined Cases 213/81 to 215/81
Norddeutsches Vieh- und Fleischkontor Will and Others
[1982] ECR 3583, paragraph 22; Joined Cases C-72/91 and C-73/91 Sloman Neptun
[1993] ECR I-887, paragraphs 19 and 21; Case C-189/91
Kirsammer-Hack
[1993] ECR I-6185, paragraph 16; and Joined Cases C-52/97 to C-54/97
Viscido and Others
[1998] ECR I-2629, paragraph 13.
(97) For an analysis and evaluation of the case-law on that point, see the Opinion delivered by Advocate General Jacobs in Case C-379/98
Preussen Elektra
[2001] ECR I-2099, paragraphs 114 to 159.
(98) Statement in intervention, point 39.
(99) The Commission ' s response, points 76 and 77, and the Commission ' s observations on Belfin ' s statement in intervention, points 34 to 41.
(100) Point V of the contested decision, under the heading
" Rescheduling of debts", fourth paragraph.
(101) Statement in intervention, point 21.
(102) Ibid, points 23 to 29.
(103) See points 85 to 87 of this Opinion.
(104) Annex 13 to the statement in intervention, point 1.2.2.
(105) Point V of the contested decision, under the heading
" Rescheduling of debts", third paragraph.
(106) See points 51 to 53 of this Opinion.
(107) Commission ' s response, points 54 to 63 and 67 to 70.
(108) See, to that effect, Case C-294/90
British Aerospace and Rover
v
Commission
[1992] ECR I-493, paragraph 14.
(109) Statement in intervention, points 32 and 45.
(110) Case 234/84
Belgium
v
Commission
[1986] ECR 2263, paragraph 16; Case C-241/94
France
v
Commission
[1996] ECR I-4551, paragraph 33, and Case C-288/96
Germany
v
Commission
[2000] ECR I-8237, paragraph 34.
(111) Joined Cases C-278/92 to C-280/92
Spain
v
Commission
[1994] ECR I-4103, paragraph 31.
(112) France
v
Commission, cited above, paragraphs 36 and 37.
(113) Case T-67/94
Ladbroke Racing
v
Commission
[1998] ECR II-1, paragraph 189 and the references cited.
(114) See, to that effect, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1, sixth recital of the preamble.
(115) Case C-364/90
Italy
v
Commission
[1993] ECR I-2097, paragraph 20.
(116) Ibid, paragraph 22. See also the Opinion delivered by Advocate General Tesauro in the
Tubemeuse
case, cited above:
" the extent of the reasoning required of the Commission can only be proportional to the information received from the Member States"
(point 13, final paragraph).
(117) The question whether the Belfin loans were covered by a Belgian State guarantee is discussed in points 158 et seq. of this Opinion.
(118) These were: the notification from the Belgian authorities to the Commission of 25 June 1996 (Annex 3 to the application lodged by Forges de Clabecq in Case T-37/97, point 5.2.3); the letter dated 23 July 1996 from the Société wallonne pour la sidérurgie SA (SWS) to the Commission (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97, p. 2); the letter dated 19 July 1996 from the Belgian Minister for Finance to Belfin (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97); the letter dated 25 June 1996 from Belfin to Forges de Clabecq (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97), and the letter dated 1 July 1996 from SNCI to Forges de Clabecq (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97).
(119) These were: the supplementary agreement, signed on 3 May 1996 by Belfin and Forges de Clabecq, to two previous agreements (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97); the fax sent on 25 June 1996 by the Belgian Minister for Finance to the Prime Minister of the Walloon Government (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97); the letter dated 23 May 1996 from the Belgian Minister for Finance to the SNCI (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97), and Supplementary Agreement No 1 to the loan agreement of 4 May 1994 signed on 29 April 1996 by Belfin, Banque Bruxelles Lambert SA and the Belgian Minister for Finance (Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97).
(120) Letter from the Belgian Ministry of Finance to SNCI of 23 May 1996, cited above.
(121) Supplementary Agreement No 1 to the loan agreement of 4 May 1994, cited above.
(122) In the decision to open the investigation, the Commission had also stated that:
" it is apparent from the information received that the relevant loans were State-guaranteed and that the [financial] bodies stipulated as a condition for extending the due date that the guarantee attached to the loans must be increased"
(Notice 96/C 301/03, cited above, p. 7).
(123) See the letter from the Société wallonne pour la sidérurgie SA (SWS) of 23 October 1996 (Annex 12 to the application lodged by Forges de Clabecq in Case T-37/97).
(124) Statement in intervention, points 34 to 35.
(125) Annex 21 to the statement in intervention.
(126) See points 109 to 120 of this Opinion.
(127) Point 149 of this Opinion.
(128) Point 150 of this Opinion.
(129) Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97.
(130) Translation provided by the Commission in the reply, point 20.1.
(131) Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97.
(132) Annex 11 to the application lodged by Forges de Clabecq in Case T-37/97.
(133) Annex 21 to the statement in intervention.