Federal Republic of Germany v Commission of the European Communities.
Date: 1984-03-20
11 THUS IN JUDGMENTS OF 11 DECEMBER 1973 ( CASE 120/73 , LORENZ V GERMANY , ( 1973 ) ECR 1471 ; CASE 121/73 , MARKMANN V GERMANY , ( 1973 ) ECR 1495 ; CASE 122/73 , NORDSEE V GERMANY , ( 1973 ) ECR 1511 ; AND CASE 141/73 LOHREY V GERMANY , ( 1973 ) ECR 1527 ) THE COURT RECOGNIZED THAT THE PRELIMINARY STAGE OF THE PROCEDURE FOR REVIEWING AIDS UNDER ARTICLE 93 ( 3 ) IS INTENDED MERELY TO ALLOW THE COMMISSION TO FORM A PRIMA FACIE OPINION ON THE PARTIAL OR COMPLETE CONFORMITY WITH THE TREATY OF THE AID SCHEMES NOTIFIED TO IT . THE PURPOSE OF THAT PROVISION , WHICH SEEKS TO PREVENT THE IMPLEMENTATION OF AID CONTRARY TO THE TREATY , REQUIRES THAT THE PROHIBITION LAID DOWN IN THAT RESPECT BY THE LAST SENTENCE OF ARTICLE 93 ( 3 ) SHOULD BE EFFECTIVE DURING THE WHOLE OF THE PRELIMINARY STAGE . THEREFORE THE COMMISSION MUST ACT WITH DUE EXPEDITION IN ORDER TO TAKE ACCOUNT OF THE INTEREST OF THE MEMBER STATES IN OBTAINING CLARIFICATION IN CASES IN WHICH THERE MAY BE AN URGENT NEED TO TAKE ACTION ; OTHERWISE , AFTER THE EXPIRY OF AN APPROPRIATE PERIOD , WHICH THE COURT SET AT TWO MONTHS , THE MEMBER STATE CONCERNED MAY IMPLEMENT THE MEASURES IN QUESTION AFTER GIVING THE COMMISSION PRIOR NOTICE THEREOF .
12 ACCORDING TO THOSE SAME JUDGMENTS , THE COMMISSION MUST INFORM THE MEMBER STATE CONCERNED IF , AFTER THE PRELIMINARY EXAMINATION , IT COMES TO THE CONCLUSION THAT THE SYSTEM OF AID NOTIFIED IS COMPATIBLE WITH THE TREATY . IF , AFTER NOTIFICATION OF A POSITIVE DECISION BY THE COMMISSION , THE AID IN QUESTION IS IMPLEMENTED IT BECOMES AS AN ' ' EXISTING AID ' '  AND AS SUCH IS SUBJECT TO THE CONSTANT REVIEW PROVIDED FOR IN ARTICLE 93 ( 1 ). IF , ON THE OTHER HAND , THE COMMISSION CONSIDERS THAT THE AID IS NOT COMPATIBLE WITH THE COMMON MARKET IT MUST WITHOUT DELAY INITIATE THE PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 2 ), WHICH INVOLVES THE OBLIGATION TO GIVE THE PARTIES CONCERNED NOTICE TO SUBMIT THEIR COMMENTS .
13 THE ARGUMENTS PUT FORWARD IN THE PRESENT CASE BY THE GERMAN GOVERNMENT LEAD THE COURT TO ADD THAT ONE OF THE MAIN CHARACTERISTICS DISTINGUISHING THE EXAMINATION UNDER ARTICLE 93 ( 2 ) FROM THE PRELIMINARY EXAMINATION UNDER ARTICLE 93 ( 3 ) RESIDES IN THE FACT THAT THE COMMISSION IS UNDER NO OBLIGATION AT THE PRELIMINARY STAGE TO GIVE NOTICE TO THE PARTIES CONCERNED TO SUBMIT THEIR COMMENTS . HOWEVER , SUCH A PROCEDURE , WHICH GUARANTEES THE OTHER MEMBER STATES AND THE SECTORS CONCERNED AN OPPORTUNITY TO MAKE THEIR VIEWS KNOWN AND ALLOWS THE COMMISSION TO BE FULLY INFORMED OF ALL THE FACTS OF THE CASE BEFORE TAKING ITS DECISION , IS ESSENTIAL WHENEVER THE COMMISSION HAS SERIOUS DIFFICULTIES IN DETERMINING WHETHER A PLAN TO GRANT AID IS COMPATIBLE     WITH THE COMMON MARKET . IT FOLLOWS THAT THE COMMISSION MAY RESTRICT ITSELF TO THE PRELIMINARY EXAMINATION UNDER ARTICLE 93 ( 3 ) WHEN TAKING A DECISION IN FAVOUR OF A PLAN TO GRANT AID ONLY IF IT IS CONVINCED AFTER THE PRELIMINARY EXAMINATION THAT THE PLAN IS COMPATIBLE WITH THE TREATY . IF , ON THE OTHER HAND , THE INITIAL EXAMINATION LEADS THE COMMISSION TO THE OPPOSITE CONCLUSION OR IF IT DOES NOT ENABLE IT TO OVERCOME ALL THE DIFFICULTIES INVOLVED IN DETERMINING WHETHER THE PLAN IS COMPATIBLE WITH THE COMMON MARKET , THE COMMISSION IS UNDER A DUTY TO OBTAIN ALL THE REQUISITE OPINIONS AND FOR THAT PURPOSE TO INITIATE THE PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 2 ).
14 THE APPLICATION OF THOSE PRINCIPLES TO THE FACTS OF THE PRESENT CASE LEADS TO THE CONCLUSION THAT , IN THE FIRST PLACE , THE COMMISSION WAS NOT ABLE TO ACCEPT THE BELGIAN PLAN AS NOTIFIED TO IT AND WAS LED TO ENTER INTO EXTENSIVE BILATERAL NEGOTIATIONS WITH THE BELGIAN GOVERNMENT AIMED AT MAKING SUBSTANTIAL AMENDMENTS TO THE ORIGINAL PLAN IN ORDER TO MAKE IT COMPATIBLE WITH THE COMMON MARKET . THUS THE BELGIAN GOVERNMENT AGREED INTER ALIA TO AMEND ALL THE RULES GOVERNING THE FINANCING OF ITS PLAN , NOT TO ALLOW THE BENEFICIARIES OF THE PLAN TO RECEIVE ANY OTHER FORM OF AID , TO EXCLUDE CERTAIN BRANCHES OF THE BELGIAN TEXTILE AND CLOTHING INDUSTRY FROM ITS SCOPE AND TO GIVE PRIOR NOTICE TO THE COMMISSION OF ANY MEASURES OF AID CONTEMPLATED IN FAVOUR OF UNDERTAKINGS BELONGING TO CERTAIN OTHER BRANCHES , A LIST OF WHICH WAS DRAWN UP BY COMMON AGREEMENT .
15 IN THE SECOND PLACE , IT MUST BE POINTED OUT THAT BY REASON OF THOSE VERY NEGOTIATIONS 16 MONTHS ELAPSED BETWEEN NOTIFICATION OF THE PLAN AND THE FAVOURABLE DECISION OF THE COMMISSION ; THAT WELL EXCEEDS THE PERIOD NORMALLY REQUIRED FOR A PRELIMINARY EXAMINATION UNDER ARTICLE 93 ( 3 ).
16 FINALLY , IT MUST BE OBSERVED THAT ALTHOUGH THE COMMISSION ULTIMATELY AGREED TO RECOGNIZE THE AMENDED BELGIAN PLAN AS COMPATIBLE WITH THE COMMON MARKET , SUBJECT TO COMPLIANCE WITH THE CONDITIONS LAID DOWN , IT DID NOT CONSIDER THAT ALL THE DIFFICULTIES RAISED BY THE CASE HAD BEEN RESOLVED . IN THE CONTESTED DECISION OF 18 NOVEMBER 1981 THE COMMISSION STATED THAT DESPITE THE IMPORTANT AMENDMENTS MADE TO THE ORIGINAL PLAN IT ' ' REMAINS VERY CONCERNED ABOUT THE EFFECTS WHICH APPLICATION OF THE PLAN MAY HAVE ON COMPETITION WITHIN THE COMMUNITY ' '  AND THEREFORE RESTRICTED THE DURATION OF ITS APPLICATION TO A SINGLE YEAR .
17 THE VARIOUS FACTORS REFERRED TO ABOVE LEAD TO THE CONCLUSION THAT THE COMMISSION ENCOUNTERED SERIOUS DIFFICULTIES IN CONSIDERING WHETHER THE PLAN FOR RESTRUCTURING THE BELGIAN TEXTILE AND CLOTHING INDUSTRY NOTIFIED TO IT ON 28 JULY AND 11 AUGUST 1980 WAS COMPATIBLE WITH THE TREATY . THE COMMISSION WAS THEREFORE UNDER AN OBLIGATION TO INITIATE THE CONSULTATION PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 2 ) BEFORE TAKING ITS DECISION .