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Article 100a (8) and 225 will not be included in this analysis, given the lack of previous administrative procedure and the fact that the possibility of bringing the case directly to the ECJ is granted to the Commission as well as to the other Member States. Therefore, I will concentrate on the other exceptions.
"State aid", an area where the breaches of Community law are also committed by the Member States themselves, constitutes a clear exception to Article 169 procedure. There are two procedures stated by Article 93 EC Treaty: one for existing aid, and another one for new aid. Afterwards, the ECJ created a third procedure for aid granted, or altered, without notifying the Commission.
The reason why the Treaty provided for a special procedure in Article 93 was, according to the ECJ, that:
"The assessment in such cases of whether a State aid is or is not compatible with the common market raises problems which presuppose the examination and appraisal of economic facts and conditions which may be both complex and liable to change rapidly"[7]
Nevertheless, the objective of fair competition was listed together with other objectives in Article 3 EEC Treaty, with no discrimination by reason of importance. It is reasonable to wonder, why an infringement of State aid legislation should be considered more important, than some obstacles to the free movement of goods, capital, or services, which have the same elements of complexity and need for urgent action as to require a special procedure to be introduced in the Treaty. In fact, as will be analyzed later, in some sectors, i.e. public procurement, the need for a special procedure has been satisfied, at least partially, by secondary legislation.
Moreover, it has been argued that the importance of State aid results from the difficult balance between economic liberalism and public interventionism, which the EC Treaty represents.[8] Furthermore, it has also been suggested that the EEC Treaty included this procedure, because of the Member States' own interest in having quick indications from the Commission on how a certain kind of aid could be awarded, without transgressing the Treaty.[9]
In any case, the rules contained in the Treaty do not suffice to solve all the procedural problems. In fact, in this area, Article 94 shows the need and offers a clear legal basis for adopting further procedural rules. However, no general procedural rules have been adopted taking, as legal basis, Article 94, although the Commission presented a draft regulation in 1966 and another in 1972, both of which were eventually dropped by the Commission itself.[10] This was due both to the reluctance of the Commission and the passivity of the Council. Furthermore, since the amendment of Article 94 by the Maastricht Treaty, now including the obligation to consult the Parliament, this is a clear case in which the European Parliament may be particularly interested to challenge the Commission for failure to act. Indeed, at present, the Commission still appears very reluctant to bring forward new legislation on this matter, preferring to use soft law. Thus, the Commission, either by refusing to present any proposal to the Council, or by acting through soft law, is not in accord with powers as Parliament or Council. This statement is not denied by the use of the word "may" in Article 94, since that word, more than granting a discretional power to adapt any rule, provides the Council with the possibility to interpret, whether "appropriate regulations for the application of Articles 92 and 93" are needed or not.[11]
In fact, the ECJ has regretted several times, implicit or explicitly, the lack of appropriate procedural rules.[12] Besides, some of the Commission communications could be declared null and void if the ECJ had applied here the same reasoning used in Case C-303/90, ("code of conduct"), where the ECJ denied the power, to the Commission, to adopt an act that belonged to the Council's exclusive cognizance. In any case, as a result of the Commission's attitude, State aid has been, and still is, one of the areas where the ECJ has been "constrained" to legislate more by case-law.[13] Indeed, as resulting from the Industry Council pressure, and the suggestions made by the ECJ and CFI, the Commission has started again to give thought to a proposal for a Council regulation, on the basis of art. 94, concerning procedural issues.[14]
The absence of formal rules of procedure leads to some unclear situations, and part of these situations have been solved via soft law, and ECJ's case-law.[15] However, there has been one case where the ECJ did not only clarify some procedural problems, but had also to create a new procedure in State aid. This new procedure referred to such situations in which aid has been granted or altered by the Member State without informing the Commission. In fact, Article 93(2) procedure can only be instituted once the Commission has been informed by the Member State. In principle, if a Member State fails to notify it, the Commission will have to apply the Article 169 procedure, together with a request to the ECJ for interim measures, under Article 186. Oddly enough, in a 1990 decision, the ECJ decided to create a whole new procedure, not provided for by the Treaty, instead of just calling upon the legislator to do so. I reproduce the main paragraph of the ECJ's decision:
"Once it has established that aid has been granted or altered without notification, the Commission therefore has the power, after giving the Member State in question an opportunity to submit its comments on the matter, to issue an interim decision requiring it to suspend immediately the payment of such aid pending the outcome of the examination of the aid and to provide the Commission, within such period as it may specify, with all such documentation, information and data as are necessary in order that it may examine the compatibility of the aid with the common market...if the Member State fails to suspend payment of the aid, the Commission is entitled, while carrying out the examination on the substance of the matter, to bring the matter directly before the Court by applying for a declaration that such payment amounts to an infringement of the Treaty...This means of redress is in fact no more than a variant of the action for a declaration of failure to fulfil Treaty obligations, specifically adapted to the special problems which State aid poses for competition within the common market".[16]
This new procedure, created by the ECJ, means that Article 169 is not considered appropriate for being applied to State aid. In fact, the Court calls it a "variant" of Article 169 procedure.[17]
Although in that particular case, the ECJ managed to avoid the use of the Article 169 procedure, there are other cases where the overlap between the two procedures is still inevitable.[18] A clear example of this situation is when the Member State does not observe the procedural obligations imposed by Article 93(3), and the aid illegally granted is later held to be compatible with the common market, under Article 92. In this case an analysis of the aid reveals elements not covered by Article 92, that can make the granting of such aid illegal. For example, the problem may be simply the lack of notification of new aid under Article 93(3). Although Article 93(2) procedure and the new one created by the Court are more effective than Article 169, since they allow to stop the granting of an aid, the Article 169 procedure may be considered to be a better option, from a legal point of view, to deal with those procedural aspects. In any case, in the absence of a clear rule, it seems that the Commission has the option to choose between those procedures:
"Although,..., Article 93(2) of the Treaty sets up a procedure specifically adapted to the special problems created by State aid with regard to competition in the common market, the existence of that procedure in no way prevents the compatibility of an aid scheme in relation to Community rules other than those contained in Article 92 from being assessed under the procedure provided for in Article 169"[19]
However, it appears that the two procedures serve two different purposes: Article 93(2) is appropriate for the material unlawfulness or incompatibility of the aid with the common market, and Article 169 procedure for the formal unlawfulness or the lack of compliance with procedural requirements. Furthermore, it seems clear that the two procedures should not be used concurrently. In fact, the ECJ has stated that a previous final decision, under Article 93(2), concerning the compatibility of the aid with the common market, is a binding requirement to initiate the Article 169 procedure.[20]
Article 90 of the EC Treaty entrusts the Commission to assess and ensure the application of competition rules to public undertakings, and undertakings to which Member States grant exclusive or special rights. The third paragraph of Article 90 grants the Commission the power to address, where necessary, appropriate directives or decisions to Member States.[21] The first sentence of Article 90(3) can be considered superfluous, since the Commission is already compelled by Article 155 to ensure that all the provisions of the Treaty are applied.[22] Thus, Article 90(3) does not grant new powers to the Commission, but specific tools, with which to carry out its pre-established functions.
Once again, this lack of legislative development has forced the ECJ to solve some problems, and to clarify doubts, created by this provision; this does not mean, however, that all the procedural questions related to Article 90(3) are now crystal clear. One of the first issues presented by this provision, which required clarification, was whether the "directives" mentioned in Article 90(3) were to have the same value, as those mentioned in Article 189. The ECJ answered this question in the affirmative. Thus, Article 90(3) directives include the possibility for the Commission of adopting legislation and specifying Member States' obligations, if such adoption and specification are required to ensure the application of Article 90.[23] This law-making power is granted, however, individually to the Commission, since neither the Council nor the European Parliament can participate in the elaboration process of those directives.
A procedural problem presented by Article 90(3) was whether directives or decisions, adopted under this provision, can substitute the Article 169 procedure for the purpose of enforcing Article 90. The ECJ has distinguished between directives and decisions.[24] According to the ECJ, the Commission by way of directives, because of their own nature, cannot take into consideration the particular situation of a Member State. Directives, therefore, cannot be used by the Commission to make a finding that a Member State has failed to fulfil a particular obligation, under the Treaty".[25] On the other hand, the ECJ has also specified that the Commission must be empowered to determine, via decision, "that a given measure is incompatible with the rules of the Treaty and to indicate what measures the State to which the decision is addressed must adopt in order to comply with its obligations under Community law".[26] Otherwise Article 90(3) will be deprived of its effect utile.
Therefore, Article 90(3) decisions clash with the Article 169 procedure. The first procedural obstacle in dealing with transgressions, by way of these decisions, was to ensure respect for rights to the defence, in the absence of explicit provisions in that sense. The ECJ solved this problem by stating that respect for rights to the defence is a general principle of Community law, and that every Community institution must observe when adopting a measure capable of adversely affecting the addressee. Therefore the right to be heard, as part of the right to the defence, must also be observed here.[27]
There is still the need to clarify how Article 90(3) decisions could be combined with the Article 169 procedure. It has been argued that the principle of "lex specialis derogat generalis" should necessarily force the Commission to use, in this specific area, the tools granted under Article 90(3).[28] However, the case-law of the ECJ maintains that although the Commission has the duty to ensure the application of Article 90, it is free to choose the most appropriate means.[29]
The fact that the Commission can choose freely, does not answer the question of when and why the Commission would choose to use one or another. In other words, the question is what adds Article 90(3) to the general Article 169 procedure. It appears, that reasons of urgency would not be enough to justify the adoption of Article 90(3) decision, since the Commission could always accelerate the administrative phase of Article 169 procedure, and then ask the ECJ for interim measures.[30] Besides, the adoption of a decision could produce a longer procedure if the Member State does not voluntarily comply with the content of such a decision. In fact, in such a case, and under the present legal framework, the Commission will have to send a formal notice and then a reasoned opinion, even if the Member State concerned has already had the opportunity to submit its observations before the decision, under Article 90(3), was taken. Oddly enough, contrary to what happens under the Directive 83/189 (cf. detailed opinion, see infra), the Article 90(3) decision does not release the Commission from the obligation of sending a formal notice as a previous step to the reasoned opinion of Article 169. Indeed, given that the right to the defence, as a general principle of Community law, applies during the process of adoption of an Article 90(3) decision, the administrative part of Article 169 procedure could be considered superfluous and a waste of time.[31] Moreover, if, as it has been suggested, the right to the defence, under Article 90(3), is also to be extended to the undertakings concerned, this possibility would make this procedure more intricate and formalistic than the "normal" Article 169 procedure, where only Member States have that right.[32] It appears that these problems, related to adoption of Article 90(3) decisions, can cause the Commission to use the Article 169 procedure, also in this subject field, which would render Article 90(3) decisions useless.
In order to make it more attractive for the Commission to use this procedure, the Commission should be empowered to refer the case directly to the ECJ in case of non-compliance with the Commission decision, and when the Member State has not used its right to challenge such a decision under Article 173. In fact, this solution is foreseen by the Treaty in State aid.[33]
However, there are some reasons which justify the existence of the two separate procedures, with different features. First, a decision adopted under Article 90(3) which has not been challenged before the ECJ by the Member State concerned, could be alleged, before the national courts, by those that can derive a benefit from that decision. Second, while Article 169 procedure may be better instituted when an infringement has to be terminated immediately and entirely, Article 90(3) decisions can be more useful, as a first step, when a complex situation exists, and the Commission is of the opinion that the situation of illegality requires some time to be eliminated.[34] Third, Article 90(3) decisions allow the Commission to establish clearly the measures, a Member State has to adopt, to conform with EC law. Fourth, Article 90(3) can be used for national measures that have not yet come into effect.[35] Finally, a decision which has not been challenged by the Member State concerned has, as a result, the possibility that a further judicial procedure before the ECJ, under Article 169, would focus on the non-compliance with the obligations set-up by the decision, and not on compliance of the Member State with its general obligations, under the Treaty. Moreover, the legality of the decision, if it has not been challenged, cannot be put in question.[36]
Nevertheless, and in spite of the reasons, which may justify the present situation, it has to be noted that the existing ambiguity cannot be good either for the Commission or Member States. The cases brought to the ECJ show the resistance of Member States to accept new enforcement powers of the Commission which were not clearly stated by the Treaty. This resistance and the procedural requirements, introduced by the ECJ, may also make the use of this procedure less attractive for the Commission. In fact, the Commission has preferred to use Article 169 procedure, rather that Article 90(3), against some Member States concerning their energy monopolies.[37]
The Maastricht Treaty introduces two new obligations for Member States: avoiding excessive public deficit and public debt; it also sets up a procedure in order to ensure that Member States fulfil their obligations, hereinafter referred to as "Article 104c procedure". The Maastricht Treaty treats monetary policy differently from budgetary or fiscal policy. While the Treaty requires centralization of the former, it leaves the latter within the competence of national parliaments. The discretion of national parliaments is subject, however, to some limits which are supervised by Community institutions. The solution found for fiscal policy is, indeed, the result of a compromise, since the positions held by experts and Member States, previous to the Maastricht Treaty, range from total centralization to voluntary co-operation.[38] In fact, it is not clear, from an economic point of view, whether a common monetary policy necessarily requires a common fiscal policy.[39]
One special feature of Article 104c procedure is that it constitutes an exception to the powers of the Commission, as guardian of the Treaties. In fact, in this process, the Council plays the most important and decisive role. In spite of it, it has to be noted that the Commission has notably increased its powers, under the Maastricht Treaty, in the area of economic policy, where the Community had previously only coordinatory powers.
Article 104c procedure is built up according to a special technique, known as "phased obligations".[40] Thus, Article 109e(3) divides the procedure into two main phases.[41] The first one, or phase one, is applied from the beginning of the second stage for achieving an economic and monetary union; the second one, or phase two, will be only applied from the beginning of the third stage.
Phase one [Article 104c(2)-(8)] consists of a special procedure to supervise excessive government deficit (3% of GDP), and debt (60% GDP).[42] This procedure has been developed partially by the Protocol No. 5, annexed to the EC Treaty -Maastricht Treaty-, and subsequently via secondary legislation. Article 4(1), of Council Regulation No. 3605/93, requires that Member States report to the Commission their planned and actual public deficit and debt twice a year; the first time before 1 March of the current year, and the second time before 1 September.[43] The Commission, then, prepares a report if it considers that an excessive deficit exists, or may occur in a Member State.[44] Once the Monetary Committee formulates an opinion on the report prepared by the Commission, the latter addresses an opinion to the Council.[45] If the Council decides that an excessive deficit exists, it shall make recommendations to the Member State concerned, with a view to bringing that situation to an end.[46] If the Member State does not take effective action within the period laid down in the recommendation, the Council may, then, make it public [Article 104c(8)]. However, as has been pointed out, if the Council decides after an overall assessment that the excessive deficit does not exist, the procedure may simply end with the report of the Commission and the opinion of the Monetary Committee.[47] In this procedural phase there is no legal way of forcing Member States to comply with the Council recommendation. Nor is it possible to take them to the ECJ in case of failure to fulfil their obligation of providing accurate information, which normally derives from Article 5 EC Treaty. In fact, Article 104c(10) excludes the possibility of bringing actions, provided for in Articles 169 and 170, within the framework of this procedure. The non-binding character of this procedure is reflected by Article 109e(4) when it states that "In the second stage, Member States shall endeavour to avoid excessive government deficits".[48]
Phase two [Article 104c(9) and (11)] starts when the Member State concerned fails to put into practice the recommendation of the Council. In this phase, the Council has the power to notify the Member State concerned that it must take, within a specified time-limit, measures considered necessary for reducing the deficit. In so far as a Member State fails to comply with the Council's decision, paragraph 11 of this Article gives to the Council the power to adopt several measures, such as imposing fines "of an appropriate size", or "inviting" the EIB to put an end to its lending policy towards the Member State concerned.[49]
The binding character of this phase is expressed by the wording of the first paragraph of Article 104c, applicable only in the third stage, which states that "Member States shall avoid excessive government deficits".[50]
The predominance of the Council, and consequently of Member States, over the Commission is manifested in the special role it performs, in the Article 104c procedure.[51] In spite of the general increase of powers that this procedure implies for the Community, as a whole, the power of the Commission to ensure the application of EC law -cf. Article 155 EC Treaty- appears reduced, while that of the Council is enlarged.[52] In fact, the Commission cannot use the Article 169 procedure, at least in the first phase, even if a Member State refuses to provide the requested information. And just in case the Commission has manifested the possibility of a deficit, the Council can decide the opposite even through it may be in direct conflict with the Commission's opinion.
The predominance of Member States is not shown separately, but rather collectively, within the Council. In fact, in the first phase, individual Member States lose their power to bring, under Article 170, an action before the ECJ for lack of compliance of another Member State with the EC Treaty.
Also, concerning Article 104c procedure, the functions of the ECJ are as well affected. First, as a result of the prohibition, stated in paragraph 10 of Article 104c, of bringing actions, provided for in Articles 169 and 170. Second, the ECJ cannot control the legality of the act that puts an end to the first phase, a recommendation, given its non-binding character [cf. Article 173]. However, in the second phase, the ECJ recovers full use of its powers. Thus, the ECJ can review the legality of the Council decisions, taken under paragraphs 9 and 11, and actions, provided for in Articles 169 and 170, are allowed, relative to the lack of compliance with the sanctions imposed by the Council, under paragraph 11. Finally, the only legal remedy which is not affected, either by phase one or phase two, is the judicial control of the failure of the Commission or the Council to act. As a result, it appears that the potential role of the ECJ is far more important than originally desired by negotiators and economic experts.
The original purpose of Article 104c drafters might have been to deal with such an area on a political level, taking account of the fact that national budgetary policy has not been transferred to the Community and that national parliaments are very reluctant to give up this policy. The negotiators of the Maastricht Treaty were of the opinion that the subject area of Article 104c was not appropriate for ECJ decision-making. Rather, they felt that economic reality sets up its own rules. Thus, it has been pointed out that in economic matters, Member States act under "big pressure", and that in the management of multi-country economies, discretion is more important than rules.[53] In fact, before fines were imposed, a big political crisis would have already taken place. In addition, the failure to comply with any formal sanctions could result in punitive sanctions, of a political, rather than a legal nature. Indeed, in the case of a persisting conflict, the most likely solution would be, for the Member State, to leave the monetary union. It would be politically unacceptable, and economically undesirable, that a country takes advantage of a stable currency without making the efforts required to keep a low deficit and public debt.
Furthermore, Article 104c and the rest of the provisions related to the economic and monetary policy, were negotiated by representatives of the national Finance Ministries and Central Banks; legal experts only intervened at the end of the negotiation process. The fact that there are no lawyers in the Commission's Division, which deals with the implementation of Article 104c procedure, is also indicative of an expectation that law would play a reduced role.
Finally, we can speculate on the practical efficiency of this procedure, since there is a risk of excessive politicization of the supervisory function. A similar procedure established by Article 88 of the ECSC Treaty, where the Council also plays an important role in enforcing the application of ECSC legislation, has never been applied, due precisely to its political nature. Under the two legal provisions, Articles 88 ECSC Treaty and 104c EC Treaty, the Council adopts its final decisions by a majority of two-thirds. The only explicit innovation of Article 104c(13) EC Treaty is that the votes of the Member State concerned are excluded from the final voting. However, since more than one country can be affected by the sanctions, provided for by Article 104c(11), the possibility of bargaining and negotiation between Member States, could make clear once more, that ensuring compliance with EC obligations should not be left to a multilateral forum of political discussion.
The EEC Treaty did not set out any special procedure to deal with the case where a private company infringed Articles 85 and 86. However, Article 87 established the obligation for the Council to adopt any appropriate regulations or directives to implement the Articles 85 and 86, taking care, in particular, to ensure compliance with the prohibitions laid down in Articles 85(1) and 86, and to define the respective functions of the Commission and of the ECJ. As a consequence, Article 3 of Council Regulation No 17/62 created a special procedure to deal with breaches of Articles 85 and 86 of the EC Treaty committed by private companies.[55] Article 3(1) of Council Regulation No. 17/62 states:
"Where the Commission, upon application or upon its own initiative, finds that there is an infringement of Article 85 or Article 86 of the Treaty, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end"
As can be observed, Member States are not the addressees of this special procedure, but legal persons. Therefore, here the procedural position of Member States has a minor relevance. In fact, it can be said that this case constitutes an exception to the general rule that infringements committed by natural or legal persons should, in principle, be dealt with by national authorities. However, although Member States do not directly take part in this procedure, it is important to make some comments on its special features, in order to analyse a possible application of some particularities to other procedures and to understand the role played by the Commission in the Community system of enforcement. This is more relevant due to the on-going discussion on the decentralization of the supervision of part of this kind of infringements to national authorities.[56]
Member States and any private individual or legal person are entitled to make the application referred to in Article 3(2) Regulation 17/62. However, while Member States can bring a complaint, irrespective of the extent of their interest in the matters complained of, natural or legal persons are entitled to do so only in so far as they can claim a legitimate interest in that regard. Obviously, because of the peculiar scope of this procedure, there are fewer complaints here than in the procedure under Article 169 EC Treaty.[57]
The fact that the Commission may itself by means of a decision bring an infringement to an end and even impose direct sanctions, gives this procedure considerable advantages compared to Article 169 procedure. Even if the Member State could be found responsible for a breach which had originally been committed by a natural or legal person (for example, for deliberate lack of surveillance on illegal activities) Article 169 procedure does not offer this power of direct intervention to the Commission.
The reasons that justify the granting of special powers to the Commission seem to be more the consequence of a political decision than the result of the special features of this policy. The particular powers of the Commission in competition policy could, at first sight, be justified because of the specific transnational and communitarian nature of such a policy compared to others. However, we may find those characteristics in other infringements committed by legal persons in other areas, such as fraud to the EC budget. Therefore, the real reasons that have justified a particular treatment of breaches in competition law seem to be different. Firstly, that special treatment may be the result of complex political bargaining and fights between different national interests, i.e lack of trust. Secondly, while it was possible to expect that the Commission was able to handle the limited number of potential infringements in competition law, it is clearly impossible for the Commission to control, for example, all the farmers that are receiving subsidies from the EC budget.[58] Furthermore, it can be argued that the "negative" role played by the Commission allows it to have powers of direct intervention. This "negative" role implies that it only acts when there is an agreement, or another illegal act, but in general the action of Companies is presumed to be lawful. However, even in competition policy the resources of the Commission have proved too limited to deal with all the suspected infringements.[59]
[ ]7Case C-301/87 France v. Commission ("Boussac") [1990] ECR I-307 at I-367, paragraphs 15 and 16, p. I-355.
[ ]8See VALLE GALVEZ, Alejandro "Las ayudas de Estado en la jurisprudencia del Tribunal de Justicia de las Comunidades europeas" in RODRIGUEZ IGLESIAS, Gil Carlos & LIÑAN NOGUERAS, Diego El Derecho comunitario y su aplicación judicial (Madrid: Civitas, 1993), p. 886.
[ ]9MARENCO, Giuliano "Public Sector and Community Law" (1983) 20 CMLRev. 521.
[ ]10However, Article 94 EEC has been used in combination with Article 75 EEC, as legal basis for adopting procedural rules concerning state aids in the sector of transport (cf. Council Regulation (EEC) 1107/70 of 4 June 1970 on the granting of aids for transport by rail, road and inland waterway -O.J. 1970, L131/1). Also, Article 94 has been used, in combination with Article 113, as legal basis of the new proposal of a Council Regulation on aid to shipbuilding. Although there was some opposition at first, especially from Germany, in December 1995 the Council accepted the reference to Article 94.
[ ]11Cf. Case C-303/90 France v. Commission ("code of conduct") [1991] ECR I-5315 at I-5350, paras. 13 and 24, pp. 5344, 5346.
[ ]12See: Order of the President of the ECJ (20 September 1983) in Case 171/83R, Commission v. France [1993] ECR 2621; Case 120/73 Lorenz [1973] ECR 1471; Case C-301/87, France v. Commission [1990] ECR I-307. More recently the CFI has pointed out the need for a contradictory procedure with the complainant apart from that of art. 93.2: Case T-95/94, Sytraval v. Commission [1995] ECR II-2651 at II-2680, especially at paras. 50 and 78, pp. 2668, 2677. The Commission has submitted the case to the ECJ.
[ ]13In fact, the ECJ has regretted the legislative gap: see Case 301/87 France v. Commission cit., at para. 14, p. I-355.
[ ]14This proposal is in a reflection document prepared by the Commission, in order to prepare the debate of the 14 November 1996 Industry Council. The proposal has two parts: first, the Commission suggests that the Council delegates the power to it to adopt regulations for granting exceptions to some categories of aid and the de minimis rule. The second part claims for a procedural regulation, but without drafting the proposal in detail.
[ ]15The soft law used by the Commission in State aid is manifold: e.g. letters sent to Member States, Communications published in the Official Journal, etc. Anyhow, the Commission published in 1990 a "compendium", with the main documents concerning the development of State aid. In November 1991 the Commission published another compilation aimed to complete the first one. It was adopted as a consequence of the pressure of the Council of Ministers for industry. This compilation includes Commission statements, communications, guidelines, procedural rules and decisions of the ECJ. On the 13th of December 1994, the Commission adopted a new guide of procedures, which was sent to Member States in July 1995. This guide recognizes that the procedural rules on State aid have been developed in a fragmentary way through decisions of the Commission, case-law, letters to Member States, either published or not in the Official Journal, and that those rules have never been treated systematically (points 1 and 2). The objective of the guide is simply to describe the present situation. The Commission also recognizes that its interpretation is subject to modification by future ECJ case-law. Finally, the guide also points out the possibility of future new rules that could contradict it. It can also be argued that such a guide is adopted without a clear legal basis.
[ ]16Case C-301/87 France v. Commission ("Boussac") [1990] ECR I-307 at I-367, paragraphs 15 and 16, p. I-355, at paragraphs 19 and 23, in pp. I-356, I-357. The underline is mine. This new procedure, however, may not be very useful for aid granted once only. In fact, in this case, the interim decision is completely useless.
[ ]17Cf. Case C-301/87 cit., at para. 23, in p. I-357.
[ ]18For the possible conflicts in general between Article 169 and Article 93 procedures see -although it is not completely updated, GILMOUR, David "The Enforcement of Community Law by the Commission in the Context of State Aids: the Relationship between Articles 93 and 169 and the choice of remedies" (1981) 18 CMLRev. 63-77.
[ ]19Case C-35/88 Commission v. Greece [1990] ECR I-3125 at I-3162, at paragraph 11, in p. I-3154. See also Case 72/79 Commission v. Italy [1980] ECR 1411, Case 290/83 Commission v. France [1985] ECR 439; Case C-61/90 Commission v. Greece [1992] ECR I-2444 at I-2455, at para. 25, in p. I-2453.
[ ]20Cf. Case 290/83 Commission v. France "Caisse Nationale de Crédit agricole" [1985] ECR 439-451, at para. 17, p. 450.
[ ]21See Article 90(1) and (2). Article 90(3) states:
"The Commission shall ensure the application of the provisions of this Article and shall, where necessary, address appropriate directives or decisions to Member States"
Article 97 of the EC Treaty (tax provisions) creates a similar procedure. Because of its very specific nature it will not, however, be analysed here. For the differences between Article 97 and Article 90(3) see HOCEPIED, Christian "Les Directives Article 90 paragraph 3: une espèce juridique an voie de disparition?" (1994) 2 Revue des Affaires Européennes 50.
[ ]22In this sense, see MARENCO, Giuliano "Public Sector and Community Law" (1983) 20 CMLRev. 520.
[ ]23See Joined Cases 188-190/90 France, Italy and United Kingdom v. Commission [1982] ECR 2545-2599, at para. 14, in p. 2575. See also Case C-202/88 France v. Commission [1991] ECR I-1223 at I-1274, para. 14, in p. I-1263.
[ ]24The ECJ case-law has established differentiation between a "pouvoir préventif" (directives) and a "pouvoir répressif" (decisions). See MÉLIN-SOUCRAMANIEN, Ferdinand "Les pouvoirs spéciaux conférés à la Commission en matière de concurrence par l'article 90, § 3, du Traité de Rome" (1994) 382 RMC et UE 601.
[ ]25Cf. Case C-202/88 cit., at para. 17, in p. I-1264.
[ ]26Joined Cases C-48/90 and C-66/90 Netherlands and others v. Commission [1992] ECR I-565 at I-641, para. 28, in p. I-635.
[ ]27Joined Cases C-48/90 and C-66/90 cit., at para. 37, in p. I-637.
[ ]28HOCEPIED, Christian "Les Directives Article 90 paragraph 3: une espèce juridique an voie de disparition?" (1994) 2 Revue des Affaires Européennes 49-63, at p. 55.
[ ]29See Case C-202/88, cit., para. 24, in p. I-1266: "[...] that Article 90 imposes on the Commission a duty of supervision which may, where necessary, be exercised through the adoption of directives and decisions addressed to the Member States". The same position was supported by Sir Leon Brittan in 1991 [quoted by MÉLIN-SOUCRAMANIEN, Ferdinand "Les pouvoirs spéciaux conférés à la Commission ..." op. cit., note 25, p. 604].
[ ]30In this sense, see MARENCO G. "Public Sector and Community Law" op. cit. p. 523.
[ ]31See, for example, Commission's decision 85/276/EEC concerning the insurance in Greece of public property and loans granted by Greek State-owned banks (O.J. 1985, No. L152/25) and subsequent Case 226/87 Commission v. Greece [1988] ECR 3611-3625. Greece did not comply with the decision and did not challenge the decision before the ECJ. The Commission initiated, on 8 April 1986, an Article 169 procedure (a year after the decision was adopted). The final decision of the ECJ was taken on 30 June 1988 supporting the Commission position. However, the Commission had to initiate an Article 171 procedure to finally force Greece to comply with the first decision. See also BRIGHT, Christopher "Article 90, Economic Policy and the Duties of Member States" (1993) 6 European Competition Law Review 271.
[ ]32See HOCEPIED, op. cit. p. 58. See also MÉLIN-SOUCRAMANIEN, F. "Les pouvoirs spéciaux conférés à la Commission..." op. cit. p. 610. According to this scholar the main advantage of this kind of decisions was to provide the Commission with a less formalistic tool than Article 169. However, the requirement of the right to the defence has practically eliminated such an advantage.
[ ]33Cf. Article 93(2). In other parts of the Treaty, direct action to the ECJ is allowed even without a previous administrative procedure: cf. Articles 100a(4) [paragraph 8 after the Treaty of Amsterdam] and 225.
[ ]34See MARENCO, G. "Public Sector and Community Law" op. cit. p. 522.
[ ]35Cf. DERINGER, SELVAGGI (quoted by MARENCO, G. op. cit. note 54, p. 522).
[ ]36See MÉLIN-SOUCRAMANIEN, F. op. cit. p. 609.
[ ]37See FLYNN, James & TURNBULL, Emma "Annotation to Joined Cases C-48/90 and C-66/90" (1993) 30 CMLRev. 404.
[ ]38The Werner Report indicated in 1970, that both monetary and budgetary decisions should be centralized at Community level, quoted in PADOA-SCHIOPPA, Tommaso "Economic Federalism and the European Union" in KNOP, Karen; OSTRY, Sylvia; SIMEON, Richard; SWINTON, Katherine Rethinking Federalism: Citizens, Markets, and Governments in a Changing World (Vancouver: UBC Press, 1995) p. 160. See also for a summary of the different positions: PADOA-SCHIOPPA, T. "The Road to Monetary Union in Europe: The Emperor, the Kings, and the Genies" (Oxford: Clarendon Press, 1994), in Chapter 9, pp. 165-184.
[ ]39In this sense, PADOA-SCHIOPPA, T. "The Road to Monetary Union in Europe..." op. cit. p. 183.
[ ]40SNYDER, F. "EMU -Metaphor for European Union? Institutions, Rules and Types of Regulation" in DEHOUSSE, Renaud (ed.) Europe After Maastricht: An Ever Closer Union? (München: Law Books in Europe, 1994) pp. 84, 89.
[ ]41SNYDER notes that there are, in fact, three phases if one considers, as a phase, the time period before the beginning of the second stage. We will not refer to this previous phase because the powers of Community institutions are of mere coordination, and because the effects of that phase have elapsed, once the second stage has started. For an analysis of this phase see SNYDER, F. "EMU -Metaphor for European Union?..." op. cit.
[ ]42These figures are indicated in Article 1 of Protocol No. 5 on the excessive deficit procedure, which is attached to the Maastricht Treaty. The arbitrariness of these figures has been pointed out: see, e.g. SIEBERT, Horst and KOOP, Michael Institutional Competition versus Centralization: Quo Vadis Europe? Kiel Working Paper No. 548 (1993) p. 16; PADOA-SCHIOPPA, Tommaso "Economic Federalism and the European Union" op. cit. p. 160.
[ ]43Council Regulation (EC) No. 3605/93 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (O.J. 1993 No. L332/7).
[ ]44Cf. Article 104c(3).
[ ]45Cf. Article 104c(4)(5).
[ ]46Cf. Article 104c(6)(7).
[ ]47See SNYDER, F. "EMU -Metaphor for European Union? ..." op. cit. p. 74.
[ ]48Emphasis added.
[ ]49Oddly enough, the suspension of the payment of EC funds was not included among the possible measures to be taken.
[ ]50Emphasis added.
[ ]51A similar predominance of the Council appears in the new procedure that has been recently created by the Treaty of Amsterdam, in Article f) bis. Although, a general comment on this new procedure requires more thought, I am tempted to say that some of the considerations, made in this section, could also apply to that new procedure.
[ ]52Although the United Kingdom and Denmark have announced that they will not enter the third phase for achieving economic and monetary union, they have accepted this procedure and the extent of the Commission's present powers.
[ ]53Cf. PADOA-SCHIOPPA, T. "The Road to Monetary Union in Europe..." op. cit. p. 42.
[ ]54Although the procedure followed in anti-dumping policy also has interesting features, it will not be analysed here, since the power to adopt the final decision corresponds to the Council, the role of the Commission being reduced to a preparatory character. For a description of the said procedure, see: Council Regulation (EC) No. 384/96 on protection against dumped or subsidized imports from countries which are not members of the EC (O.J. 1996, No. L56/1).
[ ]55O.J. Special Edition in English (1959-1962) p. 87; See also in the same sense Articles 10 and 11 of Regulation (EEC) No.1017/68 applying rules of competition to transport by rail, road and inland waterway (O.J. 1968 L175/1) -Sp. Ed. p. 302. However, since they follow the model established by Reg. 17/62 we will refer mainly to the latter.
[ ]56In fact, at present there is under discussion an interesting proposal on decentralization of Commission powers to national authorities -cf. internal document of the Commission IV/0603/94, unpublished. More recently, the Commission has published a draft Commission Communication on cooperation between the Commission and national authorities concerning Articles 85 and 86 (O.J. 1996 No. C262/5). Furthermore, in 1993 the Commission published a Notice on "cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty" (O.J. 1993 No. C39/6-12).
[ ]57Cf. VESTERDORF, Bo "Complaints concerning Infringements of Competition Law within the Context of European Community Law" (1994) 31 CMLRev.79.
[ ]58For example, while the number of important companies in competititon policy is not more that 700, the number of farmers, traders, importers, for example, is much greater.
[ ]59The Directorate-General IV receives approximately 100 complaints annually.