4.

Therefore it is in addition above all necessary to investigate the question whether other special Treaty rules preclude the issue of a directive of this kind by the Commission. Essentially in agreement on this point, the applicants argue that on account of the close connection between the provisions of the directive and State aids, only the Council is empowered to issue such rules under Article 94 of the Treaty. In the view of the Commission and also of the [German] Federal Government, on the other hand, the subject-matter of the directive does not fall within the field of application of Articles 92 and 93 of the Treaty. Consequently the Council is not competent to issue such a rule, as its power under Article 94 cannot go beyond the provisions of the said article. In the view of the Kingdom of the Netherlands also, the Commission has such a competence, without prejudice to the question whether the Council might possibly at the same time have been able to issue rules on the basis of Article 94 of the Treaty. In considering this dispute, it must be conceded to the applicants that the question which aids are or may be compatible with the Treaty, by what procedure the Commission may investigate them and under what conditions the Council can specify an aid as compatible with the common market, can be answered only on the basis of Anieles 92 and 93. However, those provisions make no mention of the way in which, in carrying out its tasks, the Commission can learn of the existence of aids granted or financial relationships which are possibly to be classified as aid. The purpose of this directive, however, is precisely to fill that gap, particularly with regard to the financial relations between the Member States and their public undertakings. In my view, at the same time it cannot be denied that there is a connection with the provisions on State aids, in so far as the directive is intended exclusively to reveal the financial relations which make it possible for the Commission to fulfil its tasks under Article 93 of the Treaty. That is expressed in the third and fifth recitals in the preamble to the directive, where it is stated that “the Treatyrequires the Commission to ensure that Member States do not grant undertakings, public or private, aids incompatible with the common market”, and that “a fair and effective application of the aid rules in the Treaty to both public and private undertakings will be possible only if these financial relations are made transparent”. The reason why the directive's field of application extends only to public undertakings is then given in the fourth and sixth recitals in the preamble, as it is there stated that “the complexity of the financial relations between national public authorities and public undertakings tends to hinder the performance of this duty” and that “such transparency applied to public undertakings should enable a clear distinction to be made between the role of the State as public authority and its role as proprietor”. Therefore the Member States are required in Article 5 of the directive to keep information concerning the financial relations referred to in Article 1 at the disposal of the Commission for five years and supply such information to it on request, so that under the procedure provided for in Anieles 92 and 93 of the Treaty the latter can form an opinion as to whether or not there is an aid compatible with the common market. Consequently it is clear that the directive does not, as the Italian Government panicularly fears, interfere with the procedural guarantees provided for in Article 93 of the Treaty. As for the rest, that is expressly confirmed in the thineenth recital in the preamble as it is clearly stated that the directive “is without prejudice to other provisions of the Treatv, notablv Articles 90 (2), 93 and 223”. Furthermore, it cannot be denied that from the statement of the financial relations which must be kept at the Commission's disposal it does not automaticallv follow that those are aids within the meaning of Article 92, as that information must necessarily include more than aids. Consequently it must be concluded with the Commission and those intervening in its support that the directive neither provides a definition of aids nor interferes with the procedure for the control of aids òr determines its course. As must be admitted, it is the Council which would if necessary be competent to issue such measures, supplementing the provisions in question, on the basis of Article 94 of the Treaty. Indeed, that article gives to the Council the power to make regulations for the application of Articles 92 and 94, but does not state, as the Commission correctly remarks, that only the Council can regulate all questions which are in some way connected with State aids and go beyond the field of application of Anieles 92 and 93. As I have already pointed out. if that view were supported, the rules in Article 90 of the Treatywould have no meaning in so far as thev relate to State aids. The reference in Article 90 (3) to the entire aniele as well as the express mention of Anieles 92 to 94 in Article 90 (lì shows, however, precisely that questions which are connected with aids granted to public undenakings and which go beyond the rules contained in Amele 92 et seq. of the Treaty may be regulated by the Commission within the framework of the discretion which I have described. However, the present directive is not. as its contents show, concerned with aids, but with the special supplementary problem that in the Member States' relationship with public undertakings, in particular as a result of the public authorities' proprietorial capacity, aids mav take a particular form and thereby be more difficult for the Commission to recognize. In this respect particular importance is to be attributed to the fact that grants to public undertakings do not, like financial aid by private companies to an undertaking, come from the private property of those companies, which is subject to commercial risk in every respect, but rather directiv or indirectly from the resources of the State budget. For that reason the danger cannot be discounted that in the use of those funds commercial considerations which a businessman would take into account do not always come into play. Although, as the French Government argues, financial transactions which are to be regarded as aids may also take place within private concerns, it is nevertheless undeniable that on the grounds of the normal desire for profit and the limitation of private resources such financial aid must be more limited both in time and extent than State allocations. In addition it is often particularly difficult in the case of public undertakings to distinguish between economic activity intended for profit and proceedings which fall under Article 92 of the Treatv. That is particularly true where it is a question of drawing a line between proprietory investments, increases in capital or offsetting losses and State support on the grounds of economic or social policy. Not least, because of the close link between the public authority and public undertakings, grants or other advantages which must be considered to be aids, can be given in forms which, if they can be recognized at all, are difficult for outsiders to identify. In this respect, also, I am unable to agree with the French and Italian Governments, which, with reference to the legal separation which they have between public and private undertakings, on the one hand, and the State, on the other, claim that the State's financial transactions with public undertakings could always be discovered from the laws giving effect to the budget, balance sheets, annual financial statements or other publications. It seems to me that there is evidence against that argument in the very fact that aids can appear in the most varied forms and do not necessarily have to be public, either because, as a result of the differences of opinion existing in the different Member States as to the role of public undertakings, they are not regarded as subventions, or because they do not amount to direct financing. One example which may be mentioned here is the possibility of distorting competition by granting credit at favourable rates of interest through credit institutions which are supported by the State but governed by private law. Those special problems, which exist in relation to the financial relations between the Member States and their public undertakings and which make the Commission's supervisory task considerably more difficult or even impossible, therefore justify the issue by the Commission of rules of this nature, based on Article 90 (3), which leave the substantive provisions of Article 92 et seq. of the Treaty unaffected and only create the technical preconditions for it to carry out its obligation. That is all the more valid when they could also require the same information as is required by that directive through individual decisions and in the form of an abstract list of questions. In this connection I do not consider it necessary to settle the question whether the Council, on the basis of Article 94, could not also issue corresponding rules by a way of “appropriate regulations for the application of Articles 92 and 93”. Even if that possibility is supported on the basis of an “effet utile” interpretation of Article 94 the Commission's special powers under Article 90 of the Treaty are not thereby excluded. If in the sphere of the application of the provisions of that article legal measures are issued from the nature of things there may be overlapping with the Council's jurisdiction to issue implementing regulations in accordance with Article 94, without there being any possibility of concurrent competence between the Commission and the Council in the true sense. Furthermore, as the Commission correctly remarks, such a possibility does not lead to the danger that there will be two different sets of rules, as according to Article 94 the Council may make rules only on a proposal from the Commission, and in formulating its proposals the latter will be able to take the existing position into account.