Court of Justice of the European Communities (including Court of First Instance Decisions)

ACTION FOR FAILURE BY A MEMBER STATE TO FULFIL ITS OBLIGATIONS - NON-COMPLIANCE WITH A COMMISSION DECISION CONCERNING STATE AID - DECISION NOT CONTESTED BY MEANS OF AN ACTION FOR A DECLARATION OF NULLITY - DEFENCES - LEGALITY OF THE DECISION CALLED IN QUESTION - NOT ADMISSIBLE
( EEC TREATY , ART . 93 ( 2 ), SECOND SUBPARAGRAPH )

A MEMBER STATE MAY NOT , IN PROCEEDINGS FOR A DECLARATION THAT BY FAILING TO COMPLY WITH A COMMISSION DECISION CONCERNING STATE AID IT HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY , CHALLENGE THE FACTUAL AND LEGAL FINDINGS ON WHICH THE COMMISSION BASED ITS DECISION IF IT DID NOT CONTEST THAT DECISION IN DUE TIME BY MEANS OF AN ACTION FOR A DECLARATION OF NULLITY .

IN CASE 93/84
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , G . MARENCO , AND BY MRS M.-J . JONCZY , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
APPLICANT ,
V
FRENCH REPUBLIC , REPRESENTED BY F . RENOUARD AND PH . POUZOULET OF THE DIRECTORATE FOR LEGAL AFFAIRS AT THE MINISTRY OF FOREIGN AFFAIRS , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE FRENCH REPUBLIC ,
DEFENDANT ,

APPLICATION UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 93 ( 2 ) OF THE EEC TREATY FOR A DECLARATION THAT , BY FAILING TO COMPLY WITHIN THE PRESCRIBED PERIOD WITH THE COMMISSION DECISION OF 8 FEBRUARY 1983 CONCERNING AID TO MAINTAIN MARITIME EMPLOYMENT GRANTED TO FISHING UNDERTAKINGS , THE FRENCH REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 2 APRIL 1984 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 93 ( 2 ) OF THE EEC TREATY FOR A DECLARATION THAT , BY FAILING TO COMPLY WITHIN THE PRESCRIBED PERIOD WITH COMMISSION DECISION NO 83/313/EEC OF 8 FEBRUARY 1983 CONCERNING AID TO MAINTAIN MARITIME EMPLOYMENT GRANTED TO FISHING UNDERTAKINGS BY THE FRENCH GOVERNMENT ( OFFICIAL JOURNAL 1983 , L 169 , P . 32 ), THE FRENCH REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

2 ACCORDING TO THE RECITALS IN THE PREAMBLE TO THAT DECISON , THE CONTESTED AID AMOUNTED IN PRACTICE TO A SUBSIDY OF FF 0.105 FOR EACH LITRE OF GAS-OIL USED AND WAS GRANTED TO ALL FISHING UNDERTAKINGS . THE FRENCH GOVERNMENT EXPLAINED THAT THE REFERENCE TO FUEL WAS USED MERELY AS A CRITERION FOR GRANTING THE AID AND THAT THE AID IN QUESTION WAS TO BE REGARDED AS EMPLOYMENT AID . ITS PURPOSE WAS TO MITIGATE THE EFFECTS ON THE FISHING FLEETS OF THE SPECTACULAR INCREASE IN RUNNING COSTS , OF DWINDLING CATCHES AND OF THE REDEPLOYMENT OF FISHING ACTIVITIES .

3 ACCORDING TO THE SAME RECITALS , IT EMERGED THAT THAT AID HAD BEEN GRANTED REGULARLY IN FRANCE SINCE 1974 , THAT THE GRANT OF THE AID IN 1974 AND 1975 HAD BEEN AUTHORIZED BY THE COMMISSION AND THAT THE LATTER HAD RAISED NO OBJECTIONS TO ITS RENEWAL IN 1977 . HOWEVER , THE COMMISSION DECIDED IN 1980 TO INITIATE THE PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 2 ) OF THE TREATY ON THE GROUND THAT THE AID IN QUESTION WAS AT THE TIME NO LONGER TEMPORARY AID BUT OPERATING AID GRANTED WITHOUT ANY RECIPROCAL COMMITMENT ON THE PART OF THE RECIPIENT AND THAT THE GRANT OF SUCH AID HAD A SUBSTANTIAL DIRECT IMPACT ON TRADE BETWEEN THE MEMBER STATES . WHILE THAT PROCEDURE WAS IN PROGRESS , IN DECEMBER 1981 , THE COMMISSION LEARNED THAT THE FRENCH GOVERNMENT HAD DECIDED TO DOUBLE THE AID IN QUESTION WITH EFFECT FROM JULY 1981 AND ASKED THAT GOVERNMENT FOR CONFIRMATION ; THE FRENCH GOVERNMENT CONFIRMED THAT INFORMATION AND , IN ACCORDANCE WITH ARTICLE 93 ( 3 ) OF THE TREATY , NOTIFIED THE EXTENSION AND THE DOUBLING OF THE AID IN QUESTION FOR 1982 . THE COMMISSION DECIDED TO INITIATE THE PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 2 ) OF THE TREATY ALSO IN RESPECT OF THAT AID .

4 ON COMPLETION OF THE ABOVE-MENTIONED PROCEDURES , THE COMMISSION ADOPTED DECISION NO 83/313 IN WHICH IT STATED THAT THE AID IN QUESTION , AS GRANTED IN FRANCE FROM 1979 TO 1982 , WAS INCOMPATIBLE WITH THE COMMON MARKET WITHIN THE MEANING OF ARTICLE 92 OF THE TREATY , THAT CONSEQUENTLY SUCH AID WAS NO LONGER TO BE GRANTED AND THAT THE FRENCH REPUBLIC , TO WHICH THE DECISION WAS ADDRESSED , WAS TO INFORM THE COMMISSION WITHIN ONE MONTH OF THE NOTIFICATION OF THE DECISION - WHICH TOOK PLACE ON 5 APRIL 1983 - OF THE MEASURES TAKEN TO COMPLY THEREWITH .

5 AFTER IT HAD SOUGHT AND OBTAINED AN ADDITIONAL PERIOD IN WHICH TO INFORM THE COMMISSION OF THE MEASURES ADOPTED , THE FRENCH GOVERNMENT NOTIFIED THE COMMISSION THAT THE IMPLEMENTATION OF THE AID HAD HELPED TO BRING ABOUT FAR-REACHING STRUCTURAL CHANGES IN THE FISHERIES SECTOR , THAT IT HAD NOT HINDERED TRADE IN FISHERY PRODUCTS BETWEEN THE MEMBER STATES AND , FINALLY , THAT IT DID NOT IN ANY WAY CONSTITUTE A DISTORTION OF COMPETITION .

6 IN THE LIGHT OF THAT REPLY , THE COMMISSION NOTIFIED THE FRENCH GOVERNMENT THAT THE INFORMATION PROVIDED WAS NOT SUCH AS TO BRING ABOUT A CHANGE IN THE COMMISSION ' S POSITION AND THAT IN THOSE CIRCUMSTANCES THE DECISION ADOPTED WAS STILL VALID IN EVERY RESPECT . THE COMMISSION REQUESTED THE FRENCH GOVERNMENT TO NOTIFY IT WITHIN FOUR WEEKS OF THE MEASURES ADOPTED TO COMPLY WITH THE DECISION IN QUESTION . IN THE ABSENCE OF ANY RESPONSE FROM THE FRENCH GOVERNMENT , THE COMMISSION INSTITUTED THESE PROCEEDINGS .

7 IN ITS DEFENCE , THE FRENCH GOVERNMENT CONTENDS THAT THE COMMISSION HAS FAILED TO DEMONSTRATE THAT THE CONTESTED AID HAS AN EFFECT ON TRADE BETWEEN FRANCE AND THE OTHER MEMBER STATES OR THAT IT DISTORTS , OR THREATENS TO DISTORT , COMPETITION WITHIN THE COMMUNITY . ON THE CONTRARY , THE AID HAS NOT PRODUCED ANY EFFECTS WHICH RENDER IT INCOMPATIBLE WITH ARTICLE 92 ( 1 ) OF THE TREATY .

8 THE COMMISSION MAINTAINS THAT THE FRENCH GOVERNMENT ' S DEFENCE AMOUNTS TO CALLING IN QUESTION THE LEGALITY OF DECISION NO 83/313 , ALTHOUGH THAT GOVERNMENT HAD ALLOWED THE TWO-MONTH PERIOD FROM THE DATE OF NOTIFICATION , PROVIDED FOR IN ARTICLE 173 OF THE TREATY , TO EXPIRE WITHOUT CONTESTING THE LEGALITY OF THE DECISION BY THE MEANS AVAILABLE UNDER THAT ARTICLE .

9 THE COMMISSION ' S POINT OF VIEW MUST BE UPHELD . UNDER ARTICLE 189 OF THE TREATY , A DECISION IS BINDING IN ITS ENTIRETY UPON THOSE TO WHOM IT IS ADDRESSED . THE FRENCH GOVERNMENT DID NOT CHALLENGE DECISION NO 83/313 IN DUE TIME AND , AS THE COURT EXPLAINED IN ITS JUDGMENT OF 12 OCTOBER 1978 IN CASE 156/77 ( COMMISSION V BELGIUM ( 1978 ) ECR 1881 ), IT IS THEREFORE BARRED IN THESE PROCEEDINGS FROM CHALLENGING THE FACTUAL AND LEGAL FINDINGS ON WHICH THE COMMISSION BASED ITS DECISION .

10 IT MUST THEREFORE BE HELD , WITHOUT THERE BEING ANY NEED TO CONSIDER THE ARGUMENTS PUT FORWARD BY THE DEFENDANT , THAT BY FAILING TO COMPLY WITHIN THE PRESCRIBED PERIOD WITH COMMISSION DECISION NO 83/313 OF 8 FEBRUARY 1983 CONCERNING AID TO MAINTAIN MARITIME EMPLOYMENT GRANTED TO FISHING UNDERTAKINGS BY THE FRENCH GOVERNMENT , THE FRENCH REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

COSTS
11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
( 1 ) DECLARES THAT , BY FAILING TO COMPLY WITHIN THE PRESCRIBED PERIOD WITH COMMISSION DECISION NO 83/313/EEC CONCERNING AID TO MAINTAIN MARITIME EMPLOYMENT GRANTED TO FISHING UNDERTAKINGS BY THE FRENCH GOVERNMENT , THE FRENCH REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

( 2)ORDERS THE FRENCH REPUBLIC TO PAY THE COSTS .