Gebrüder Lorenz GmbH v Federal Republic of Germany and Land Rheinland-Pfalz.
Date: 1973-12-11
2 ARTICLE 93 PROVIDES PROCEDURE ENABLING THE COMMISSION TO DISCOVER STATE AID INCOMPATIBLE, HAVING REGARD TO ARTICLE 92 OF THE TREATY, WITH THE COMMON MARKET, AND TO PROVIDE FOR ITS ABOLITION OR TO PREVENT ITS IMPLEMENTATION .
PARAGRAPH 1, CONCERNING EXISTING AID, ENABLES THE COMMISSION, AFTER GIVING NOTICE TO THE PARTIES TO SUBMIT THEIR COMMENTS AS DESCRIBED IN PARAGRAPH 2, TO REQUIRE THE MEMBER STATE CONCERNED TO ABOLISH IT OR ALTER IT WITHIN A PERIOD OF TIME TO BE DETERMINED BY THE COMMISSION .
PARAGRAPH 3 INSTITUTES PRIOR CONTROL OF PLANS TO GRANT NEW OR ALTER EXISTING AID AND PROVIDES THAT " THE COMMISSION SHALL BE INFORMED, IN SUFFICIENT TIME TO ENABLE IT TO SUBMIT ITS COMMENTS, OF ANY PLANS TO GRANT OR ALTER AID . IF IT CONSIDERS THAT ANY SUCH PLAN IS NOT COMPATIBLE WITH THE COMMON MARKET HAVING REGARD TO ARTICLE 92, IT SHALL WITHOUT DELAY INITIATE THE PROCEDURE PROVIDED FOR IN PARAGRAPH 2 .
THE MEMBER STATE CONCERNED SHALL NOT PUT ITS PROPOSED MEASURES INTO EFFECT UNTIL THIS PROCEDURE HAS RESULTED IN A FINAL DECISION ".
4 ACCORDING TO THE LAST SENTENCE OF ARTICLE 93 THE MEMBER STATE SHALL NOT PUT ITS PROPOSED MEASURES INTO EFFECT UNTIL THIS PROCEDURE HAS RESULTED IN A FINAL DECISION .
THE OBJECTIVE PURSUED BY ARTICLE 93 ( 3 ), WHICH IS TO PREVENT THE IMPLEMENTATION OF AID CONTRARY TO THE TREATY, IMPLIES THAT THIS PROHIBITION IS EFFECTIVE DURING THE WHOLE OF THE PRELIMINARY PERIOD .
WHILE THIS PERIOD MUST ALLOW THE COMMISSION SUFFICIENT TIME, THIS LATTER MUST, HOWEVER, ACT DILIGENTLY AND TAKE ACCOUNT OF THE INTEREST OF MEMBER STATES OF BEING INFORMED OF THE POSITION QUICKLY IN SPHERES WHERE THE NECESSITY TO INTERVENE CAN BE OF AN URGENT NATURE BY REASON OF THE EFFECT THAT THESE MEMBER STATES EXPECT FROM THE PROPOSED MEASURES OF ENCOURAGEMENT .
IN THE ABSENCE OF ANY REGULATION SPECIFYING THIS PERIOD, THE MEMBER STATES CANNOT UNILATERALLY TERMINATE THIS PRELIMINARY PERIOD WHICH IS NECESSARY FOR THE COMMISSION TO FULFIL ITS ROLE .
THE LATTER, HOWEVER, COULD NOT BE REGARDED AS ACTING WITH PROPER DILIGENCE IF IT OMITTED TO DEFINE ITS ATTITUDE WITHIN A REASONABLE PERIOD .
IT IS APPROPRIATE IN THIS RESPECT TO BE GUIDED BY ARTICLES 173 AND 175 OF THE TREATY WHICH, IN DEALING WITH COMPARABLE SITUATIONS, PROVIDE FOR A PERIOD OF TWO MONTHS .
WHEN THIS PERIOD HAS EXPIRED, THE MEMBER STATE CONCERNED MAY IMPLEMENT THE PLAN, BUT THE REQUIREMENTS OF LEGAL CERTAINTY INVOLVE THAT PRIOR NOTICE SHOULD BE GIVEN TO THE COMMISSION .
5 ON THE OTHER HAND ALTHOUGH IT IS IN THE INTERESTS OF GOOD ADMINISTRATION FOR THE COMMISSION, WHEN, AT THE END OF THE PRELIMINARY EXAMINATION, IT CONSIDERS THAT THE AID CONFORMS WITH THE TREATY, TO INFORM THE STATE CONCERNED, IT IS NOT HOWEVER BOUND TO TAKE A DECISION THEREON WITHIN THE MEANING OF ARTICLE 189 OF THE TREATY, SINCE ARTICLE 93 REQUIRES SUCH A STEP ONLY AT THE END OF THE CONTENTIOUS PROCEDURE .
IT IS NOT POSSIBLE TO CONCLUDE THAT THE MEASURE OF AID IS COMPATIBLE WITH THE TREATY FROM THE FACT THAT THE COMMISSION DID NOT CONSIDER ITSELF OBLIGED TO INITIATE THE CONTENTIOUS INVESTIGATION PROCEDURE WITHIN THE REASONABLE PERIOD REFERRED TO ABOVE .
ARTICLE 93 ( 1 ) REQUIRES THE COMMISSION, IN COOPERATION WITH MEMBER STATES, TO KEEP UNDER CONSTANT REVIEW ALL EXISTING SYSTEMS OF AID .
AID IMPLEMENTED, DURING THE COMMISSION' S SILENCE, AFTER A PERIOD NECESSARY FOR ITS PRELIMINARY EXAMINATION, IS THUS SUBJECT, AS AN EXISTING AID, TO THE PROVISIONS OF ARTICLE 93 ( 1 ) AND ( 2 ).
6 IN THE FIRST PLACE, THEREFORE, IT IS PROPER TO REPLY TO THE QUESTIONS PUT THAT ARTICLE 93 ( 3 ) OF THE TREATY MUST BE INTERPRETED AS MEANING THAT IF THE COMMISSION, DURING THE PRELIMINARY PERIOD, ARRIVES AT THE CONCLUSION THAT THERE IS NO NEED TO INITIATE THE CONTENTIOUS PROCEDURE, IT IS NOT BOUND TO ISSUE A DECISION WITHIN THE MEANING OF ARTICLE 189 .
THIS SAME PROVISION IMPLIES, MOREOVER, THAT, IF THE COMMISSION, AFTER HAVING BEEN INFORMED BY A MEMBER STATE OF A PLAN TO GRANT OR ALTER AID, FAILS TO INITIATE THE CONTENTIOUS PROCEDURE, THIS STATE MAY, AT THE EXPIRATION OF A PERIOD SUFFICIENT TO ENABLE A PRELIMINARY EXAMINATION OF THE PLAN, GRANT THE PROPOSED AID, PROVIDED THAT IT HAS GIVEN PRIOR NOTICE TO THE COMMISSION, AND THIS AID WILL THEN COME UNDER THE SYSTEM OF EXISTING AIDS .
IN VIEW OF THE ANSWERS GIVEN TO QUESTIONS ( A ), ( B ) AND ( C ), QUESTION ( D ) DOES NOT ARISE .
8 IT HAS ALREADY BEEN DECIDED IN THE JUDGMENT OF 15 JULY 1964 ( CASE 6/64, REC . 1964, P . 1141 ), THAT THE PROHIBITION ON IMPLEMENTATION REFERRED TO IN THE LAST SENTENCE OF ARTICLE 93 ( 3 ) HAS A DIRECT EFFECT AND GIVES RISE TO RIGHTS IN FAVOUR OF INDIVIDUALS, WHICH NATIONAL COURTS ARE BOUND TO SAFEGUARD .
THE IMMEDIATELY APPLICABLE NATURE OF THIS PROHIBITION EXTENDS TO THE WHOLE OF THE PERIOD TO WHICH IT APPLIES .
THUS THE DIRECT EFFECT OF THE PROHIBITION EXTENDS TO ALL AID WHICH HAS BEEN IMPLEMENTED WITHOUT BEING NOTIFIED AND, IN THE EVENT OF NOTIFICATION, OPERATES DURING THE PRELIMINARY PERIOD, AND WHERE THE COMMISSION SETS IN MOTION THE CONTENTIOUS PROCEDURE, UP TO THE FINAL DECISION .