Keywords

Summary



Keywords

1. Commission - Composition - Leave of absence of one of its Members - No effect on the legality of decisions adopted by the college in accordance with its rules of procedure

(Art. 215, fourth para., EC)

2. Commission - Composition - Independence of Members of the Commission in the exercise of their functions - Election to the European Parliament of a Member who resigns - No effect

(Arts 213(2), first and second subparas, EC, 215 EC and 219, second and third paras, EC)

3. State aid - Prohibition - Derogations - Aid to shipbuilding - Directive 90/684 - Aid for East German shipyards - Reduction of construction capacity - Meaning of capacity - Commission's power of appraisal - Decision declaring authorised aid to be incompatible with the common market on the basis of criteria different from those in the decision authorising that aid - Capacity limit treated as a limit on actual production - Manifest error of appraisal

(Council Directives 90/684 and 92/68)

Summary

1. A Commission decision to grant leave of absence to one of its Members has no legal basis either in the provisions of the EC Treaty or in the Commission's Rules of Procedure.

In a situation in which such a decision is adopted in regard to a Member who is resigning, it cannot therefore affect his status as a Member of the Commission or deprive the fourth paragraph of Article 215 EC of its legal force, which states that [s]ave in the case of compulsory retirement under Article 216, Members of the Commission shall remain in office until they have been replaced. The decision cannot therefore be interpreted as a decision to reduce the number of Members of the Commission, a decision which only the Council, acting unanimously, may take under the second subparagraph of Article 213(1) EC. By its decision the Commission merely gives the Member leave of absence, whilst awaiting the nomination by the Governments of the Member States, by common accord, of his replacement or the Council's decision not to fill the vacancy.

Therefore, the legality of a Commission decision, adopted in accordance with the second and third paragraphs of Article 219 EC and the provisions to which it refers, by a majority of the Members of the Commission present, is not called in question by a Commission decision to grant leave of absence to one of its Members.

( see paras 57-58, 60 )

2. A retiring Member of the Commission who is then elected to the European Parliament and whose parliamentary mandate does not commence until the date on which the European Parliament holds its inaugural session does not fail to comply with his duty of independence under the first and second subparagraphs of Article 213(2) EC when, before that date, he takes part in a meeting of the College of Commissioners at which a decision is adopted.

Similarly, there is no evidence of a credible risk to the independence of that Member of the Commission before the new Parliament is constituted. The intention of a Member, set out in his notice of resignation, to exercise his electoral mandate cannot in itself prove the loss of independence, no more than the mere statement that he belongs to a political party.

( see paras 74-75 )

3. Directive 90/684/EEC, as amended by Directive 92/68, on aid to shipbuilding in the former German Democratic Republic which, for an aid to be considered to be compatible with the common market, requires that there be a reduction in construction capacity, does not define the concept of capacity. Consequently, the Commission has a measure of discretion when interpreting that concept.

Moreover, although construction capacity is by its nature capacity for production purposes, that concept is not in itself the same as actual production or maximum production achievable under optimum conditions. A capacity restriction may therefore relate to production achievable under favourable normal conditions, given the facilities available, and not express an actual maximum production which may not be exceeded even under exceptionally favourable conditions.

The Commission commits a manifest error of appraisal in treating a capacity restriction as a limit on actual production in decisions declaring State aid to the shipbuilding industry incompatible with the common market, contrary to its approach in the decisions authorising that aid.

( see paras 91, 105-106, 110 )