3.

The comments which I have made hitherto lead logically to the conclusion that the action lodged on 23 December 1983 lacks foundation. Let us nevertheless examine a hypothetical situation. Let us assume that to avoid delay the Court reclassifies the conduct contested in the action and describes it as aid in the strict sense. In my view that is possible. A court may not go beyond the application, but it may attribute to a fact a legal label which is different to that given it by the applicant. In any event it is worth exploring the consequences of such reasoning. Is it therefore possible to state that the grant in question falls within the concept of aid under Article 92? As has already been seen, the rule is directed against not only aid directly granted by the States, but also aid financed through ‘State resources’. Let us see whether that is the case here. From the beginning of the procedure the French Government has sought to make it clear that the Fund's reserves were generated by the management of private funds and that public funds had in no way been used to contribute to the accumulation of such reserves. That claim does not seem to correspond to the facts as they appear from the note sent by that Government to the Commission on 13 March 1982. That document shows that the reserves were constituted over a period of six years, between 1975 and 1980; they followed a curve which attained its peak in 1978 (more than one thousand million francs) and which, subsequently, fell off progressively. The fact is that until 1978 the Fund received tax concessions and it was not made subject to corporation tax (Article 23 of the Financial Law No 78-1240 of 29 December 1978 and Article 4 of the Financial Law No 81-1180 of 31 December 1981) — until 1979, and then only progressively. The connection between the two sets of facts is clear. Moreover, the minutes of the meeting which the governing board of the Fund held on 7 December 1981 contain the following statement: the reserves — it is clearly stated — were constituted ‘during the financial years in which the Fund was not subject to tax or was only partly subject to tax’. In my view therefore it is established that the solidarity grant was derived from ‘State resources’. However, that is not all. The French Government also claims that the Fund is independent from the public authorities and, in particular, that representatives of the State are in a minority on the governing board. That claim is, however, excessive; indeed it may even be inaccurate. According to the provision which governs the composition of that body (Article 2 of Decree No 74-732 of 19 August 1974), it is constituted of 11 members, of whom four are ex-officio, as representatives of the State and seven are elected by the full committee of the Fund from its own members. Since among those members (30 in all) 12 are appointed by decree, it is quite possible that other State representatives may ultimately sit on the governing board in addition to the four referred to above. They may even — the possibility cannot be excluded — constitute the majority. In addition the Fund is technically a ‘public institution of an industrial and commercial nature’. According to Article 1 of Decree No 53-707 of 9 August 1953, in organizations of that type the decisions of the governing board concerning the ‘appropriations of profits’ do not become definitive until they have been approved jointly by the Minister for Financial Affairs , and by the other ministers concerned (in the case of the Fund, the Minister for Agriculture). Finally — and this is clearly of no little importance — pursuant to Decree No 60-223 of 7 March 1960, the Minister for Economic Affairs delegated the economic and financial control of the Fund to a government commissioner appointed to work under the Minister's authority. That is sufficient, in my view, to conclude that the Fund does not enjoy the autonomy claimed by the French Government, or, at least, that it did not enjoy that autonomy in the case in question. In that case, on the contrary, its function was only that of a relay of the State or, if it is preferred, of a vehicle which the State uses in order to intervene in support of French agriculture.