CELEX: 61996CC0415
Language: en
Date: 1998-03-19
Title: Opinion of Mr Advocate General Jacobs delivered on 19 March 1998. # Kingdom of Spain v Commission of the European Communities. # State aid for undertakings in the textile sector - Consequences of an annulling judgment for acts preparatory to the act annulled. # Case C-415/96.

Important legal notice

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61996C0415

Opinion of Mr Advocate General Jacobs delivered on 19 March 1998.  -  Kingdom of Spain v Commission of the European Communities.  -  State aid for undertakings in the textile sector - Consequences of an annulling judgment for acts preparatory to the act annulled.  -  Case C-415/96.  

European Court reports 1998 Page I-06993

Opinion of the Advocate-General

1 This case concerns the effect of a judgment of the Court annulling, pursuant to Article 174 of the Treaty, certain provisions of a Commission decision on State aid adopted in accordance with Article 93(2) of the Treaty.  More particularly, where the ground of annulment is the inadequacy of the statement of reasons for a specific finding that State aid was unlawful, may the Commission subsequently amend the decision by replacing the annulled provisions with fresh provisions to the same effect, supported by adequate reasons, without reopening the procedure under Article 93(2) and thereby giving the other party a fresh opportunity to be heard? 2 The background to the issue may be summarised as follows. 3 In August 1990, the Commission initiated the procedure laid down in Article 93(2) of the Treaty in respect of alleged State aid to Hilaturas y Tejidos Andaluces SA (`Hytasa'), a company operating in the textile sector.  Its findings showed that between 1986, the date of Spain's accession to the Community, and 1989, the State, through the Patrimonio del Estado (the Property Office of the Ministry of Economic Affairs and Finance), contributed PTA 7 100 million to Hytasa through capital increases intended to cover operating losses.  In July 1990, Hytasa had been privatised:  the terms of the sale provided for a further contribution of capital in the amount of PTA 4 300 million by the Patrimonio del Estado at the time of the sale in order to improve the financial position of that undertaking, to make investments and to finance dismissals, and a sale price of PTA 100 million for all the shares of the company.  The contract of sale included an undertaking on the part of the purchaser not to sell the company for three years. 4 In a decision adopted in 1992 (`the original decision') (1) the Commission declared the aid provided between 1986 and 1989 to be unlawful on the ground that it had been granted in breach of the procedural rules laid down in Article 93(3) of the Treaty, which require plans to grant aid to be notified to the Commission in sufficient time to enable it to submit its comments.  It nevertheless considered that the aid satisfied the conditions for the exception provided for in Article 92(3)(c) of the Treaty, namely aid to facilitate the development of certain economic activities or of certain economic areas where such aid does not adversely affect trading conditions to an extent contrary to the common interest, and that it was therefore compatible with the common market (Article 1 of the decision).  As regards the capital injections provided to the company at the time of its privatisation (less the amount of the sale price), however, the Commission decided not only that the aid was granted in breach of the procedural rules of Article 93(3) but also that it did not satisfy any of the conditions of the exceptions provided for in Article 92(2) and (3) and that it was therefore incompatible with the common market (Article 2 of the decision).  The Commission's decision required that the aid be recovered in accordance with the procedures and provisions of national law (Article 3 of the decision). According to Article 4 of the decision, any agreement providing for an indemnity for the buyers by the State or the Patrimonio del Estado in respect of the obligation to reimburse the aid should not be carried out.  Finally, Article 5 of the decision required the Spanish Government to inform the Commission of the measures taken. 5 The Kingdom of Spain considered that the original decision, together with two other decisions adopted the same day in relation to different undertakings, (2) had been adopted in breach of Articles 92 and 93 of the Treaty, and brought proceedings before the Court seeking annulment of, inter alia, Articles 2, 3, 4 and 5 of the original decision (`the first proceedings'). (3)  In those proceedings, the Kingdom of Spain made several distinct submissions in support of its claim.  The Court rejected its submissions that it had not infringed the procedural rules laid down in Article 93(3) of the Treaty, that the capital contributions did not constitute aid within the meaning of Article 92(1), and that the Commission's failure to justify its different treatment of the capital contributions before the sale and that made in the context of the privatisation infringed Article 190 of the Treaty. (4)  The Court was, however, more receptive to Spain's submission that the capital contribution made on the privatisation should in any event have been declared compatible with the common market by virtue of Article 92(3)(a) of the Treaty, which provides that aid intended to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment may be considered compatible with the common market.  Since it is the Court's ruling on this issue which has led to the present proceedings, I will set out the relevant part of that ruling in some detail. 6 The Commission, while acknowledging that the region of Sevilla, in which Hytasa was located, was covered by Article 92(3)(a), had none the less declared that provision to be inapplicable.  It appears from the judgment that there were two grounds for the Commission's view. 7 First, the Commission had maintained that the aid in question had not been granted under the relevant regional aid scheme but on the basis of ad hoc decisions of the Spanish Government, taking the form of discretionary capital contributions, and that the aid should therefore not be considered as regional.  The Court rejected the Commission's argument on this point;  it is not relevant to these proceedings. 8 Second, the Commission had observed that: `Even if the aid in question were to be considered as regional, it would not however be eligible for compatibility under Article 92(3)(a), because aid granted pursuant to the provisions of that Article must contribute to the long-term development of the region - this notably means in this case that the aid must at least serve for restoring the company's viability, an objective not attained for Hytasa in the light of the information submitted so far to the Commission (this aspect was already discussed in Part IV above) - without having unacceptable negative effects on competition conditions within the Community.' (5) 9 The information referred to by the Commission essentially consisted of a restructuring programme for Hytasa submitted by Spain to the Commission in the course of the Article 93(2) procedure.  Spain disputed in particular the Commission's affirmation that the restructuring plan was not likely to bring about the viability of the company. 10 The Court referred to its case-law holding that, as regards the application of Article 92(3) of the Treaty, the Commission enjoyed a wide discretion, the exercise of which involved assessments of an economic and social nature which must be made within a Community context. (6)  That discretion was, however, qualified by the requirement that the reasoning followed by the Commission must remain consistent.  The Commission had itself stated that the requirement in Article 92(3)(a) that, in order to be compatible, aid must contribute to the long-term development of the region meant in this case that the aid must at least serve for restoring the company's viability. As I stated in my Opinion, the key issue was therefore whether the restructuring plan accepted by Hytasa's buyers was likely to bring about the desired result. Unfortunately the reasoning on this point in the original decision was extremely exiguous. (7)  The Court agreed, making the following points. 11 First, the Court considered Part IV of the decision, to which the Commission referred in the above-quoted paragraph.  It noted that Part IV concerned a different question and did not deal with the question of the restoration of the viability of Hytasa.  As I noted in my Opinion, Part IV was presumably referred to by mistake, since it is Part III which deals with the soundness of the restructuring plan. (8) 12 The Court then turned to Part III of the decision, where the Commission, after summarising the contents of the two restructuring plans, questioned the validity of the statements put forward by the Spanish authorities and the forecast results and stated that the several contradictions noted between the two plans did not allow it to share the optimistic forecasts in the conclusion of the revised plan. (9)  The Court noted that the Commission did not however put forward any specific argument to the effect that the new restructuring plan would not ensure the viability of Hytasa. (10)  The Court accordingly concluded that the question of restoring Hytasa's viability was not referred to in Part III either. 13 Finally, the Court considered Part VI, where the Commission stated that the questions whether the investment projects were in line with the interest of the Community and whether they contributed to a sound restructuring of the company were `discussed further below'. (11)  In fact, the Court noted that the Commission discussed below the adverse effects of the aid on the conditions of competition without analysing the impact of the revised plan on the restoration of Hytasa's profitability.  The Court considered, however, that such an analysis was necessary in the present case, particularly because the plan provided for a substantial redirection of production towards the manufacture of clothing. 14 The Court therefore concluded that the Commission's analysis of the compatibility of the aid in question with Article 92(3)(a) of the Treaty did not meet the criteria established by itself.  It accordingly annulled the second paragraph of Article 2, and Articles 3, 4 and 5 of the original decision. 15 In October 1995 the Commission wrote to the Spanish permanent representative to the European Union indicating that, in accordance with the Court's judgment, the Commission was preparing a new draft of its definitive decision in the procedure which it had initiated pursuant to Article 93(2).  On 18 September 1996 the Commission adopted a fresh decision (12) (`the amending decision') amending the original decision. 16 Part I of the amending decision sets out the facts leading to the original decision, recites the adoption of that decision and summarises its findings. 17 Part II summarises the judgment of the Court in the first proceedings.  Part II concludes with the following recitals: `According to the Court of Justice, the Commission had not sufficiently argued its claim that the new restructuring plan would not ensure the viability of Hytasa.  The Commission had not analysed the impact of the revised plan on restoring Hytasa's profitability, and the Court deemed such an analysis to be necessary in this case, given that the new restructuring plan provided for a substantial redirection of production towards the manufacture of finished products.  The Court of Justice considered that the Commission's analysis of the compatibility of the aid with Article 92(3)(a) did not therefore meet the criteria which it had itself established. On that basis, the Court of Justice annulled the second paragraph of Article 2 and Articles 3, 4 and 5 of Decision 92/317/EEC.  Therefore, the procedure commenced under Article 93(2) remains open and, given the partial annulment of Decision 92/317/EEC by the Court's judgment, the Commission must now adopt a Decision amending its Decision of 25 March 1992 and putting an end to the procedure.' 18 The first recital in Part III of the amending decision states: `In order to take account of the judgment of the Court of Justice, the Commission must reassess whether the aid given by Patrimonio del Estado to Hytasa as part of its privatisation is compatible with the common market.'  It is followed by a fresh analysis in the light of which the Commission concludes that the restructuring plan did not ensure Hytasa's long-term viability and that therefore the aid could not be considered compatible with the common market on the basis of either Article 92(3)(a) or Article 92(3)(c). 19 Part IV of the amending decision deals with recovery of the aid. 20 Since the analysis carried out by the Commission in execution of the judgment of the Court confirmed the conclusion it had reached in the original decision, the amending decision replaced the second paragraph of Article 2 and Articles 3 and 4 of the original decision with new provisions to the same effect. (13) 21 In December 1996, the Kingdom of Spain brought these proceedings seeking the annulment of the amending decision, in essence on the basis that, in adopting the amending decision, the Commission had misunderstood the effects of the judgment in the first proceedings contrary to Article 174 of the Treaty and moreover had not complied with the procedural requirements of Article 93 in that it had denied the Kingdom of Spain the right to be heard. The effect of the judgment in the first proceedings 22 The first paragraph of Article 174 of the Treaty provides that if an action brought under Article 173 is well founded, the Court of Justice shall declare the act concerned to be void. 23 Spain submits that there are two principles determining the effect of a judgment given in accordance with the first paragraph of Article 174. 24 First, Spain refers to the principle of res judicata by virtue of which, in its view, it is doubtful whether the Commission was authorised to adopt a new decision concerning aid to Hytasa. 25 That submission to my mind confuses two separate issues. The principle of res judicata would operate so as to prevent Spain from bringing fresh proceedings to challenge the validity of the original decision, since that question has already been decided by this Court.  The principle does not operate, however, so as to prevent an institution from adopting a new measure to the same substantive effect as a measure annulled for a formal or procedural defect:  it is simply not relevant in that context. 26 Should authority be required for the legality of replacing a measure so annulled with an identical, albeit procedurally sound, measure, it may be found in the Isoglucose cases, which concerned a regulation annulled for failure to consult the Parliament.  In Roquette Frères v Council (14) and Maizena v Council (15) the Court annulled Regulation No 1293/79 (16) on the ground of infringement of an essential procedural requirement, namely failure to consult the Parliament.  In the light of those judgments, the Council, after consulting the Parliament, adopted Regulation No 387/81 (17) which was to similar effect.  The Court was subsequently asked (18) to annul the relevant provision of Regulation No 387/81 on the ground that it was retroactive in that it simply reinstated the quota and levy system previously held to be unlawful when it was sought to be introduced by Regulation No 1293/79.  The Court, having confirmed that the contested provisions of Regulation No 387/81 did not include any new measures and merely reproduced the provisions of Regulation No 1293/79 previously declared void by the Court, (19) dismissed the applications. 27 Secondly, Spain asserts that the effect of annulment pursuant to Article 174 is total, absolute and fundamental. Although Spain accepts that it is possible for a judgment partially to annul a measure, annulling some provisions and leaving others intact, it appears to consider that, where the judgment concerns, as in this case, a specific rather than a general measure, the fact that certain provisions of that measure are annulled is not an indication of partial annulment.  Although the judgment in the first proceedings annulled only the second paragraph of Article 2 and Articles 3 to 5, leaving intact Article 1 and the first paragraph of Article 2, in Spain's view that is not a partial annulment of a decision but the integral annulment of part of a decision. 28 Spain submits moreover that the effect of annulment pursuant to Article 174 extends to all `actes préparatoires', and hence in this case to all the preliminary acts effected by the Commission before adoption of the original decision.  It argues that the effect of the judgment was therefore to terminate the procedure under Article 93(2) which had culminated in the original decision and to deprive all that preceded the original decision of all effect and all validity, and concludes that the correct approach would have been for the Commission to initiate a fresh procedure under Article 93(2).  In its view, the Commission cannot rectify a posteriori acts affected by the nullity.  If the Commission could do so, it would be at an unacceptable advantage:  there would be no incentive for it to conduct a procedure correctly from the outset and no incentive for third parties to challenge an unlawful act if, on annulment of the act, the Commission could simply adopt a substitute act without reopening the relevant procedure. 29 The Commission focuses not on Article 174 but on Article 176 in analysing the effect of a judgment given in an action for annulment.  In particular, it submits that it cannot be inferred from the first paragraph of Article 174 that the invalidity of the act annulled extends to preliminary acts.  It argues that Article 174 is accordingly irrelevant for determining the consequences which a judgment in an action for annulment has with regard to preliminary acts:  the applicable rule is that laid down in the first paragraph of Article 176. 30 That provision states that the institution whose act has been declared void `shall be required to take the necessary measures to comply with the judgment of the Court of Justice'.  I would note at this point that the Court has stressed that it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision. (20)  The Court further explained Article 176 in Asteris v Commission (21) as follows: `In order to comply with the judgment and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part.  It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure.' 31 The Commission states that, where a declaration of nullity is based on a substantive illegality, Article 176 precludes the institution concerned from simply replacing the act annulled by another identical act.  I would add that, even where there has been a finding of substantive illegality, there will be circumstances where the institution concerned may properly adopt an act replacing the annulled provisions, provided of course that the illegality is cured in the fresh act. 32 Where however the nullity results from a formal or procedural defect, the Commission submits that the institution can and sometimes must replace the annulled act, ensuring that the conditions of form and procedure are respected.  It considers that Article 176 does not necessarily require the institution concerned to reopen the procedure which led to the annulled measure and to repeat the entire procedure afresh before adopting a replacement measure.  To do so would normally be contrary to the most basic requirements of the principle of procedural economy. Where the annulment of a measure is based on a formal or procedural defect, it is settled law that the institution concerned may resume the proceedings from the point at which the defect arose. (22)  In this case, the original decision was annulled because the Commission had not sufficiently explained the reasons for its conclusion that the restructuring plan would not have ensured the return to profitability of the company.  The Commission's sole obligation under Article 176 was to adopt a new decision setting out adequate reasons for that conclusion.  The amending decision executes that obligation. 33 Spain in its reply seeks to counter the Commission's argument that the original decision was annulled because of inadequate reasoning, which it accepts would be a defect of form or procedure, and asserts instead that it was annulled because the Commission did not carry out the necessary analyses.  It may be inferred that Spain considers that the latter ground amounts to a substantive ground. 34 In my view, it is clear from the terms of the judgment in the first proceedings summarised above that the Court annulled the original decision because the Commission had not given adequate reasons for its view - crucial to its finding that the aid was not within the exception in Article 92(3)(a) - that the restructuring plan would not ensure the viability of Hytasa.  It may be noted that the interpretation advanced by Spain appears to be contrary to the basis on which it pleaded its case before the Court in the first proceedings, which, at least to judge from its reliance on Intermills v Commission, (23) was that the original decision was inadequately reasoned on this point. 35 It is, as the Commission states, settled law that, where the Court annuls Community acts, whether general or specific, on the ground of a formal or procedural defect (such as failure to state adequate reasons or to consult the relevant institutions or to hear interested parties), compliance with the judgment will not normally require the institution concerned to start the entire legislative process afresh. 36 Thus for example in FEDESA (24) a directive had been annulled on account of a procedural defect concerning the manner in which it was finally adopted and was replaced by an identical directive adopted in accordance with the correct procedure.  The Court rejected the argument that the Council should have started the whole process anew by obtaining a new proposal from the Commission and a new opinion from the Parliament, specifically stating that the annulment of the directive did not affect the preparatory acts. (25) 37 It is clear that the principle that it is unnecessary to reopen the entire procedure leading up to an act annulled for a procedural irregularity extends beyond general legislative measures.  The principle was, for example, applied by the Court in proceedings seeking the annulment of a declaration of the President of the Parliament in the context of the adoption of the Community budget. (26)  The Court stated expressly that it was `for the Council and the Parliament to take the measures necessary to comply with the judgment and to resume the budgetary procedure at the very point at which' the procedural irregularity which vitiated it occurred. (27)  Advocate General Mancini stated moreover: `For the purposes of Article 176, it will be for the Parliament, as the body whose act has been declared void, to take the necessary measures to comply with the judgment ...  In that respect, and in contrast with what is stated by the defendant's lawyers, I am convinced that it will not be necessary to carry out the entire procedure afresh. From the legal point of view at least, there is nothing to stop the procedure from being resumed from the time - the Assembly's second reading - at which, as a consequence of the Court's judgment, it will be necessary to deem it as having been interrupted.' (28) 38 There are numerous cases where the Court of Justice and the Court of First Instance have ruled that, where a decision adopted by a Community institution has been annulled in Article 173 proceedings on formal or procedural grounds, the correct response is for the institution concerned to resume rather than reopen the procedure:  see for example Van Eick v Commission, (29)  Alvarez v Parliament, (30) Cimenteries CBR and Others v Commission (31) and De Compte v Parliament. (32) 39 It is furthermore clear from Transocean Marine Paint v Commission (33) that, where the Court annuls a specific provision of a decision, the Commission may, in accordance with the general principle discussed above, resume the procedure at the point at which it was vitiated by the procedural defect at issue rather than reopen the entire procedure.  Whether a decision is annulled in whole or in part is irrelevant for the purposes of determining whether the Commission must in consequence reopen the procedure which preceded the decision.  It is the ground of annulment which is relevant in this context:  if the ground is purely a formal or procedural defect, the Commission may properly remedy the defect without repeating the whole procedure by adopting a new decision which replaces all or part of the initial decision as necessary. 40 I am not persuaded by Spain's argument that the principle described above confers an unacceptable advantage on the Commission.  It may be noted that the issue arose in two of the Isoglucose cases, (34) where it was argued that, where the Court annulled a measure without ordering (pursuant to the second paragraph of Article 174) that certain effects are to remain in force, it was not permissible to restore the situation as if the judgment of nullity had not been delivered, since parties would be deterred from bringing proceedings and the legislature might be induced to ignore procedural requirements. Although the Court did not address the point, Advocate General Reischl specifically rejected the argument. (35) 41 To conclude, since the Court in the first proceedings annulled the original decision because the Commission had not given adequate reasons for its view that the restructuring plan would not ensure the viability of Hytasa, the requirements of the first paragraph of Article 176 are satisfied by the Commission's adoption of a new decision in which its reasons for that view are adequately set out.  It may be noted that Spain has not challenged the adequacy of the reasons given by the Commission in the amending decision. The right to be heard 42 Spain puts forward a separate plea that the Commission infringed its right to be heard (les droits de la défense). That plea assumes that the Commission was required to reopen the Article 93(2) procedure.  As I have indicated, I do not consider that the Commission was under any such obligation.  Nor was Spain's right to be heard infringed. The Commission was, in my view correctly, resuming the procedure at a stage at which Spain had already been heard. It appears (and has not been disputed, subject to one point to which I return below) that the Commission was basing its analysis on material which had been put forward by or made available to Spain in the context of the Article 93(2) procedure which culminated in the original decision, and in the context of which there was no allegation of infringement of the right to be heard.  There was therefore no infringement of the right to be heard on which Spain can rely in these proceedings. 43 Spain submits that it is not relevant that, during the original procedure, Spain was heard, stressing what it regards as an obvious difference between presenting observations on the profitability of the undertaking at a specific point (1990 to 1991) and several years later. Moreover, it refers to the final two recitals of Part III of the amending decision, which read as follows: `The Commission's view that the abovementioned restructuring plan did not render the company viable is confirmed by the financial interventions in its favour in which the Spanish authorities had to engage after 1992. The restructuring plan was never implemented.  Following the bankruptcy of one of the owners, Hilaturas Gossypium, Improasa, the executive company of Patrimonio del Estado, acquired 30% of MTT's share in 1992.  Several properties belonging to MTT were mortgaged in favour of Improasa for some PTA 726 million.  Improasa also acquired promissory notes issued by MTT for some PTA 4 660 million. In 1992, two credits amounting to PTA 300 million were given to the company by the Instituto de Fomento de Andalucía (IFA) [The IFA is a public entity belonging to the Andalusian Autonomous Community], as part of an aid scheme approved by the Commission [State aid N 624/92]. MTT finds itself at present in financial straits, with liabilities worth some PTA 10 000 million, so that it has been decided by the competent Spanish authorities to suspend indefinitely the payments of the company, with a view to its liquidation and the subsequent sale of its assets to pay its debts.' 44 The Commission notes that the compatibility of aid with the common market must always be analysed by reference to the situation existing at the time the aid was granted. (36)  The amending decision duly examines the compatibility of the aid, and in particular the viability of the restructuring plan, ex ante, and therefore on the basis of the same situation as the original decision, in respect of which Spain had already formulated its observations.  The final two recitals are in its view purely confirmatory. Moreover, the Commission makes the point that, had it been reasoning ex post, those recitals would have sufficed in themselves, since they bear out the Commission's earlier doubts as to the likelihood of the plan restoring Hytasa to profitability. 45 It is clear from their terms that the final two recitals are indeed merely intended to confirm the Commission's view that the plan did not render the company viable.  That view is analysed in some detail in recitals seven to twenty-six of Part III of the amending decision.  It is not alleged that the analysis in those recitals is based on anything other than material made available by Spain to the Commission in the earlier procedure.  In those circumstances, I do not see how Spain's right to be heard can have been infringed. 46 The Court came to a similar view in Bayer v Commission, (37) in the analogous context of proceedings under Regulation No 17/62. (38)  The Court held that the fact that the Commission had continued its inquiries following communication of the notice of objections did not infringe the right to be heard of the undertaking being investigated provided that the result of the inquiries did not lead the Commission to take new facts into account against the undertakings or alter materially the evidence for the contested infringements.  In particular, the fact that the decision terminating the administrative procedure included additional evidence for the facts taken into consideration in the statement of objections did not in any way constitute an infringement of the right to be heard. (39) 47 Finally, Spain refers in its pleadings to alleged infringements of the principle of legal certainty and the principle of legitimate expectations.  Since however it adduces no argument as to those alleged infringements, I do not consider it necessary to consider them further. Conclusion 48 Accordingly I am of the opinion that: (1) the action should be dismissed; (2) the Kingdom of Spain should be ordered to pay the costs. (1) - Commission Decision 92/317/EEC of 25 March 1992 on State aid in favour of Hilaturas y Tejidos Andaluces SA, now called Mediterráneo Técnica Textil SA, and its buyer, OJ 1992 L 171, p. 54. (2) - Commission Decision 92/318/EEC of 25 March 1992 on aid granted by Spain to Industrias Mediterráneas de la Piel SA (Imepiel), OJ 1992 L 172, p. 76, and Commission Decision 92/321/EEC of 25 March 1992 concerning aid awarded by Spain to Intelhorce SA (ex Industrias Textiles de Guadalhorce SA), now called GTE, General Textil España SA, a State-owned producer of cotton textiles, OJ 1992 L 176, p. 57. (3) - Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103. (4) - Paragraphs 12 to 43 and 70 to 72 of the judgment. (5) - Eighth paragraph of Part VI of the original decision. (6) - Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 34 of the judgment. (7) - Paragraph 48. (8) - Paragraph 50 of my Opinion. (9) - Sixteenth paragraph. (10) - There is a translation error in the English text of the judgment, which incorrectly reads `did not however put forward any specific argument other than that the new restructuring plan would not ensure the viability of Hytasa'. (11) - Ninth paragraph. (12) - Commission Decision 97/242/EC of 18 September 1996 amending Decision 92/317/EEC on State aid in favour of Hilaturas y Tejidos Andaluces SA, now called Mediterráneo Técnica Textil SA, and its buyer, OJ 1997 L 96, p. 30. (13) - Article 1 of the amending decision. (14) - Case 138/79 [1980] ECR 3333. (15) - Case 139/79 [1980] ECR 3393. (16) - Council Regulation (EEC) No 1293/79 of 25 June 1979 amending Regulation No 1111/77 of 17 May 1977 laying down common provisions for isoglucose, OJ 1979 L 162, p. 10. (17) - Council Regulation (EEC) No 387/81 of 10 February 1981 amending Regulation No 1111/77 of 17 May 1977 laying down common provisions for isoglucose, OJ 1981 L 44, p. 1. (18) - Case 108/81 Amylum v Council [1982] ECR 3107;  Case 110/81 Roquette Frères v Council [1982] ECR 3159 and Case 114/81 Tunnel Refineries v Council [1982] ECR 3189. (19) - Paragraph 10 of the judgments in Amylum and Roquette and paragraph 9 of the judgment in Tunnel Refineries. (20) - See, for example, Case 76/79 Könecke v Commission [1980] ECR 665, paragraphs 13 to 15 of the judgment and the Opinion of Advocate General Reischl, at 688 to 689. (21) - Joined Cases 97/86, 193/86, 99/86 and 215/86 [1988] ECR 2181, at paragraph 27 of the judgment. (22) - Case C-331/88 FEDESA and Others [1990] ECR I-4023; Case T-26/89 De Compte v Parliament [1991] ECR II-781, paragraph 70 of the judgment. (23) - Case 323/82 [1984] ECR 3809.  See paragraph 42 of my Opinion in the first proceedings. (24) - Cited in note 22. (25) - See paragraphs 33 and 34 of the judgment and also paragraphs 56 and 57 of the Opinion of Advocate General Mischo. (26) - Case 34/86 Council v Parliament [1986] ECR 2155. (27) - Paragraph 47 of the judgment. (28) - Paragraph 18. (29) - Case 13/69 [1970] ECR 3. (30) - Case 347/82 [1984] ECR 1847, paragraphs 11 to 13 of the judgment and the Opinion of Advocate General Verloren van Themaat, at 1859. (31) - Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 [1992] ECR II-2667, paragraph 47 of the judgment. (32) - Cited in note 22, paragraph 70 of the judgment. (33) - Case 17/74 [1974] ECR 1063, paragraph 20 of the judgment and the Opinion of Advocate General Warner, at 1090 to 1092. (34) - Amylum v Council and Tunnel Refineries v Council, both cited in note 18. (35) - At 3151 and 3152. (36) - Case C-261/89 Italy v Commission [1991] ECR I-4437, paragraph 21 of the judgment. (37) - Case 51/69 [1972] ECR 745. (38) - First Regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition, Series-I (1959 to 1962), p. 87. (39) - Paragraph 11 of the judgment.