5.

The court of reference states, in its reference for a preliminary ruling, that the Commission exercises the authority conferred upon it by Article 93(1) of the Treaty to assess the compatibility with Community law of a national aid measure for the construction of a vessel intended for fishing in the waters and under the jurisdiction of the Member States of the Community on the basis of ‘criteria of ... competition policy ... but also criteria derived from the Community fisheries policy’. Those criteria were specified in detail in the Guidelines. The court of reference therefore regards it as necessary to clarify the basis of the Commission's authority to draw up such Guidelines and their legal effect. The court of reference discusses arguments for and against the Commission's authority to draw up legally binding rules of interpretation for the assessment of national aid measures. One indication that the Commission has no such authority is that there is no express authorization from the Council to the Commission to take into consideration, in the context of its assessment of State aid under Community law, not only considerations of a type based purely on competition policy, but also considerations derived from the common fisheries policy. Under Article 42 of the Treaty, only the Council is competent as regards fisheries policy. The fact that it is not impossible to regard the grant of aid for the construction of a fishing vessel for the Community fleet as aid, within the meaning of Article 92(3)(c) of the EEC Treaty, to facilitate the development of certain economic activities which may in certain circumstances be regarded by the Commission as compatible with the common market tends on the other hand to indicate that the Commission does have such authority. It is conceivable that in this context, even without specific authorization, the Commission might take into account considerations derived from the common fisheries policy not only for the assessment of an individual case but also in laying down general guidelines. If it may be assumed that the Commission is authorized to draw up guidelines, the further question arises whether and on what basis a Member State is obliged to take them into account in deciding upon an application for aid. In that respect the court of reference regards Article 5 of the Treaty as an appropriate legal basis. The court refers the following questions to the Court of Justice for a preliminary ruling: ‘1. In the absence of an express authorization from the Council of the European Communities, is the Commission of the European Communities, having regard to Article 42 of the Treaty establishing the European Community in conjunction with Article 49 of Council Regulation (EEC) No 4028/86 of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aquaculture sector, empowered under the competence given to it by Article 93 of the EC Treaty to investigate aid granted by Member States, to draw up, publish and apply as basic principles in the assessment of State aid measures, Guidelines for the Examination of State aids in the Fisheries Sector (88/C 313/09) in order to coordinate Council Regulation (EEC) No 4028/86 and the Council Directive of 26 January 1987 on aid to shipbuilding (87/167/EEC), where those Guidelines lay down not only criteria pertaining exclusively to competition policy but also criteria derived from the Community fisheries policy? ( 6 ) 2. If Question 1 is answered in the affirmative: Arc the Member States obliged to apply the above-mentioned Guidelines as basic principles when deciding on an application for aid for the building of a vessel intended for fishing? If so, what is the basis for that obligation? Does that obligation only apply where the vessel in question is wholly or partly intended for fishing in waters under the sovereignty or jurisdiction of the Member States of the European Community or waters to which the Communities' external fisheries policy relates?’