3.

The four questions are intended to obtain a preliminary ruling on the interpretation of Articles 92 and 93 of the EEC Treaty. In particular the first question seeks to establish whether a number of industrial development measures adopted in the Netherlands constitute “aid” within the meaning of Article 92. The other three, on the other hand, concern the special procedure which Article 93 lays down for assessing the compatibility of the State aid with the common market. I must say immediately that, in my view, the order of the questions should. be reversed. The value of a ruling on the question concerning the definition of aid depends on the solution which the Court provides for the interpretative problems relating to the procedure laid down in Article 93. It is in the light of the Court's previous decisions that I adopt that approach. The Court has often dealt with the question of the extent to which individuals may contest the legality of State aid before their national courts. I consider to be of particular significance the views which the Court expressed in the judgments of 27 March 1977 in Case 78/76 (Steinike and Weinlig v Germania [1977] ECR 595) and in Case 74/76 (lannelli v Meroni [1977] ECR 557). Under a Law of the Federal Republic of Germany, citrus fruit importers, who used the fruit to manufacture soft drinks, were required to pay to the appropriate body a contribution intended to promote the sale and export of German agricultural products. The Court was asked to decide whether a German administrative court was entitled to assess the compatibility of such a measure with the common market. The Court's reply is well known. It stated that “in judging ... whether State aid is compatible ... complex economic factors subject to rapid change must be taken into account and assessed”. It was precisely for that reason that Article 93 of the Treaty provided “for a special procedure whereby the Commission shall keep aid under constant review”. It followed that the responsibility for establishing that aid was incompatible lay with the Commission, subject of course to review by the Court. It also followed that, as a general rule, individuals could not raise the question of compatibility before national courts on the basis of Article 92 alone (paragraphs 9 and 10 of the decision in Steiniké). The Court concluded that, accordingly, where a national court was asked to assess the compatibility of aid, it was entitled to make a ruling only in exceptional and strictly limited cases: for example if the aid had been “the subject of a decision by the Commission requiring the Member State ... to abolish or alter it ...”, or if it had not been introduced in compliance with the procedure under Article 93 (3) (paragraph 15). That is clearly a sensible solution. In terms of experience and resources, the Commission is much better equipped than the national courts to undertake the difficult inquiry required to establish whether aid is incompatible. On the other hand, a national court is quite capable of determining whether the aid continues to exist despite the Commission's expressed will to the contrary or whether it has been introduced in compliance with the procedural requirements. The implications for the case before the Court are clear. It is helpful to reply to the first question only of it is established that the Netherlands failed to comply with the requirements imposed by Article 93 and, in particular, those of Article 93 (3). According to that provision, “any plans to grant or alter aid” must be notified to the Commission in sufficient time to enable it to submit its comments and, if it considers the plan incompatible with the common market, to initiate the procedure provided for under Article 93 (2).