CELEX: 61985CC0282
Language: en
Date: 1986-06-11
Title: Opinion of Mr Advocate General Mancini delivered on 11 June 1986. # Comité de développement et de promotion du textile et de l'habillement (DEFI) v Commission of the European Communities. # Application for a declaration that a measure is void - Natural or legal persons - Admissibility - Interest in bringing proceedings and capacity to bring proceedings. # Case 282/85.

OPINION OF MR ADVOCATE GENERAL MANCINI
      delivered on 11 June 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               The Court is to decide upon an application to declare a measure void lodged at the Court Registry on 18 September 1985. The French organization which brought the action — its official title is Comité de développement et de promotion du textile et de l'habillement (CDPTH), but it is also known as ‘DEFl’ —is challenging Commission Decision 85/380 of 5 June 1985 whereby the Commission of the European Communities declared incompatible with the common market two aid schemes for individual projects in the textile and clothing sector provided for by Decrees Nos 82-1242 and 82-1243 as amended by Decrees Nos 84-389 and 84-390 (Journal officiel de la République française 1983, p. 301; 1984, p. 1651).
               The effect of those decrees was to extend until 31 December 1985 the collection of two parafiscal charges levied under the same procedure as value-added tax on sales of textile and clothing products in France (but not including sales or supplies of products originating in other Member States or placed in free circulation in such States), which had been introduced in order to promote research and the modernization and renewal of industrial and commercial structures in the textile and clothing sector. DEFI, the applicant, which was created by Decree No 84-388 of 22 May 1984 under Law No 78-654 of 22 June 1978 on trade committees for economic development (Journal officiel de la République française 1984, p. 1650; 1978, p. 2463), receives the proceeds from those charges and allocates them between aid to undertakings, joint promotion projects and technical centres serving the textile and clothing and knitwear industries.
               By a letter dated 18 April 1985, the French Government informed the Commission of its aid plan pursuant to Article 93 (3) of the EEC Treaty and requested it in particular to state its view on DEFI's system of operation, which was to provide an interest-rate subsidy for bank loans made to finance investments in the branches of industry mentioned above (Decrees Nos 84-388, 84-389 and 84-390 and the decision of the governing board of DEFI of 20 March 1985). According to that letter DEFI intended to allocate a lump sum of FF 150 million to an interest-rate subsidy of six percentage points on certain loans granted by banks in 1985 in respect of such investments. However, the French Government had informed DEFI that it would give its assent to a decision awarding loans at a subsidized rate of interest only after notification to it by DEFI of a plan complying with Community law.
               As I have said, the Commission found that the proposed aid was incompatible with the common market within the meaning of Article 92 (1) of the Treaty and that it did not meet the conditions required to fall within one of the exceptions laid down by Article 92 (3). The Commission therefore decided to institute the procedure under Article 93 and, by letter of 30 July 1984, gave notice to the French Government to submit its comments. On 5 June 1985 the Commission addressed the abovementioned Decision 85/380 to the French Government, reiterating its view that the two aid schemes were incompatible with the common market and stating that France should ‘refrain from implementing the ... aid scheme’.
               The French Government challenged that decision by way of an action to have it declared void on 20 August 1985 (Case 259/85), and little more than a month later DEFI did likewise. By a separate application lodged on 23 October 1985, the Commission objected that the second action was indmissible and requested the Court, pursuant to Article 91 of the Rules of Procedure, to decide that point without entering into the substance of the case.
            
         
               2. 
            
            
               The Commission's objection rests upon two submissions, both relating to prerequisites for bringing an action, namely that DEFI has neither capacity to sue nor an interest in bringing the proceedings.
               The argument adduced in support of the first submission is simple: DEFI, so the argument runs, is neither a Member State nor an undertaking nor an association of undertakings or consumers; it is an arm of the French State and as such does not possess — at least in matters concerning aid — the minimum degree of independence and responsibility which the Court has held to be necessary in order for a party to be regarded as having capacity to bring proceedings (Order of 14 November 1963 in Case 15/63 Lassalie v European Parliament [1964] ECR 50; Order of 11 December 1973 in Joined Cases 41, 43-48, 50, 111, 113, 114/73 Générale Sumère and
                     Others v Commission [1973] ECR 1465; judgment of 8 October 1974 in Case 18/74 Syndicat general du personnel v Commission [1974] ECR 933). Furthermore, that argument cannot be upset by the fact that DEFI has capacity to be a party to proceedings under French law. The meaning of ‘legal person’ in the second paragraph of Article 173 of the Treaty may not be the same as in any national legal system (judgment of 8 October 1974 in Case 175/73 Union syndicale and Others v Council [1974] ECR 917; judgment of 28 October 1982 in Case 135/81 Groupement des agences de voyages v Commission [1982] ECR 3799).
               That argument cannot be accepted. In order to be convinced of this it is unnecessary to mount an investigation into the concept of legal person as referred to in Article 173. Suffice it to state that: (a) as the Commission itself acknowledges, DEFI is an ‘établissement d'utilité publique, doté de ... personnalité civile’ (Article 1 of Law 78-654, cited above); (b) the decisions cited are not on all fours either because the situations are different or because they deal with the separate problem of the conditions required in order to intervene in proceedings; (c) lack of independence and responsibility in matters concerning aid does not fall to be considered in the context of capacity to bring proceedings but in that of the presence of an interest in the result.
            
         
               3. 
            
            
               The second submission is supported by two arguments: (a) DEFI's interest in having the decision declared void is indistinguishable from the interest of the French State or is subsumed under it; (b) the decision is not of direct and individual concern to DEFI.
               With regard to (a), the Commission asserts that DEFI serves merely as a conduit for the French administration, which uses it in order to distribute aid within the sector in question. Its statutes, its tasks and the powers at its disposal are all defined by law; its resources consist in parafiscal charges and are controlled by the State; and its decisions are merely proposals which do not come into effect until certain statutory timelimits have elapsed in order to enable the supervisory authority to decide whether to approve them. Thus although the rules relating to the membership of the Committee ensure that recipients of the aid which it administers are in the majority, it is impossible to identify an interest on the part of DEFI as distinct from the French State.
               With regard to (b), the Commission and the Gesamtverband der Textilindustrie in der Bundesrepublik Deutschland (Gesamttextil), which intervened in its support, state that the conditions laid down by the second paragraph of Article 173 are not met in this case. In their view the contested decision is not of individual concern to DEFI because it does not affect it by reason of certain characteristics which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and thereby distinguished individually as in the case of the person addressed. The decision does not concern DEFI at all, since any adverse effect which the decision may have on it must be regarded as secondary or indirect.
               As far as (a) is concerned, DEFI replies that it is wholly independent from the French State. Article 6 of Decree No 84-388 provides that it is to determine its own policies; equally significant is the fact that 14 of the 15 members of its governing board represent the trade interests concerned. Although the 15th member is a government appointee, he does not take part in the voting and has a purely supervisory role which is justified by the parafiscal nature of the resources placed at DEFI's disposal. It is true that the French Government has a restricted right of veto with regard to DEFI's decisions, but it should be pointed out that that right has never been exercised.
               In rebuttal of (b), DEFI contends that the decision is of individual concern to it in so far as it strikes at the specific interests of a category which it exists in order to defend. It has been given the task of allocating the aid between the various undertakings; accordingly it cannot be denied that it has special characteristics effectively identifying it as the addressee of the decision. Moreover, the decision is of direct concern to it as well for the very reason that it prevents it from carrying out the task — to distribute the aid — which is its main object.
               Finally, the applicant draws the Court's attention to the fact that it is unable either to challenge the contested decision before the national courts or to avail itself of Article 37 of the Statute of the Court of Justice, which does not permit it to intervene in the proceedings brought by France. If the objection of inadmissibility were allowed, therefore, it would be deprived of legal protection.
            
         
               4. 
            
            
               I should say at once that I do not find those arguments persuasive. In the first place, an examination of the rules governing the membership of the board would appear to justify the Commission's view that DEFI is merely a conduit. Apart from the points already mentioned, that view is supported by the following considerations: (a) the chairman and members of DEFI's governing board are appointed and may be dismissed by the competent Minister (Article 3 of Law No 78-654 and Articles 3 to 5 of Decree No 84-388); (b) the provisions governing the adoption of the governing board's internal rules and its decisions, which provide in particular that the grant of aid above a specified amount requires the approval of the government appointee and, where necessary, of the Minister (Articles 6, 7 and 10 of Decree No 84-388); (c) the supervisory powers conferred upon the State are exercised by an inspector in the case of decisions of an economic nature and by the Industry and Budget Ministers jointly for the purposes of the approval of the annual financial forecasts (Articles 8 and 9 of Decree No 84-388).
               I now turn to the issue raised in the Commission's second argument. The applicant argues that it represents the interests of the potential recipients of the aid. However, as is made clear by the letter sent to the Commission by the French Government, the aid is to be granted in the form of interest on bank loans intended to finance certain modernization projects. The aid may therefore benefit an indeterminate number of operators, and this makes it obvious that no individual person or body may be regarded as being directly and individually concerned by the decision.
               Furthermore, as the Court has stated in its judgments, it is not possible to ‘accept the principle that an association ... could be individually concerned by a measure affecting the general interests of that category’ (the emphasis is mine; judgment of 14 December 1962 in Joined Cases 16 and 17/62 Confédération nationale des producteurs de finits et légumes and Others v Council [1962] ECR 471, at p. 479; judgment of 18 March 1975 in Case 72/74 Union syndicale — Service public européen and Others v Council [1975] ECR 401, at paragraph 17 of the decision). I also cannot accept the inference which DEFI seeks to draw from that rule, namely that the measure must be regarded as being of individual concern if (a) it concerns the particular interests of a category of subjects and (b) the entity adversely affected by it was established for the protection of their collective interest.
               As the Commission has pointed out, the reference to the ‘general interests’ of a category in the judgments cited serves to distinguish them not from the interests of the members of the trade association representing that category but from the association's own interests as an organization. In other words, the requirements of the second paragraph of Article 173 may only be said to be satisfied if those interests are affected, and not merely the sum or aggregate of the individual interests of the operators represented by that organization. Yet in this case it is quite evident that such an adverse effect is not present.
               At the hearing, however, DEFI changed its approach, maintaining that it represented a specific interest distinct from either that of the French State or that of potential recipients of the aid. In fact the aid had a single beneficiary, namely DEFI, which in turn was responsible for distributing it to the textile and clothing industry.
               However, not even that change of approach succeeds in rendering the applicant's case more persuasive. By representing its task in the terms stated above, it does indeed avoid the Commission's second objection but only by confirming the justice of the first criticism levelled at it: if its task is that of a body exercising public powers or an arm of the State rather than that of a trade association, it then has no interest in bringing proceedings. In short, however they are characterized, the interests which DEFI claims to embody do not appear to me to be capable of protection within the system of actions provided for by the Treaty. They will be of relevance, if at all, at the national level. DEFI must therefore find a means of pursuing those interests before a national court and thence put them in a Community context by means of the procedure under Article 177.
            
         
               5. 
            
            
               Finally, a few brief words on DEFI's contention that allowing the objection of inadmissibility would be tantamount to denying it all legal process. At the hearing, the Commission rightly observed that it is not correct to place on the same footing a decision declaring certain aid compatible with the common market and a decision declaring it unlawful. Persons who consider themselves adversely affected by a decision of the first type are fully entitled to judicial protection because the Treaty guarantees them protection against aid which distorts competition. It is not so with persons (including undertakings and trade associations) complaining of the latter type of decision because the Treaty does not guarantee, but at most tolerates State aid.
               In other words, the aid has its source not in the Treaty but in the will of the State. Where the Commission takes the view that it is unlawful the State may or may not challenge the Commission's decision. If it challenges it, as happened in this case, the interests of the recipients are indirectly protected by the action brought by the State; if it does not, either because it considers the decision well founded or because its own aid policy has changed, no one can remedy its ‘volonté défaillante’.
            
         
               6. 
            
            
               In the light of all the foregoing considerations, I propose that the Court declare inadmissible the application lodged on 18 September 1985 by the Comité de développement et de promotion du textile et de l'habillement against the Commission of the European Communities.
               In accordance with the rule that the unsuccessful party is liable for costs, the applicant should be ordered to pay the costs.
            
         (
            *1
         )	Translated from the Italian.