JUDGMENT OF THE COURT (Fifth Chamber)

17 June 1999 (1)

(State aid — Article 92 of the EC Treaty (now, after amendment, Article 87 EC)— New aid — Prior notification)

In Case C-295/97,

REFERENCE to the Court under Article 234 EC (ex Article 177) by the Tribunaledi Genova (Italy) for a preliminary ruling in the proceedings pending before thatcourt between

Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA

and

International Factors Italia SpA (Ifitalia),

Dornier Luftfahrt GmbH,

Ministero della Difesa

on the interpretation of Article 92 of the EC Treaty (now, after amendment,Article 87 EC),

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, C. Gulmann,D.A.O. Edward and M. Wathelet (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA, by TomasoGalletto, of the Genoa Bar,

—    Dornier Luftfahrt GmbH, by Antonio Fusillo and Alessandro Fusillo, bothof the Rome Bar, and Gianfranco Nasuti, of the Genoa Bar,

—    the Italian Government, by Umberto Leanza, Head of the ForeignLitigation Department at the Ministry of Foreign Affairs, acting as Agent,assisted by Oscar Fiumara, Avvocato dello Stato,

—    the Commission of the European Communities, represented by GérardRozet, Legal Adviser, and Paolo Stancanelli, of its Legal Service, acting asAgents,

having regard to the Report for the Hearing,

after hearing the oral observations of Industrie Aeronautiche e Meccaniche RinaldoPiaggio SpA, represented by Tomaso Galletto and Ivano Cavanna, of the GenoaBar, Dornier Luftfahrt GmbH, represented by Antonio and Alessandro Fusillo, theItalian Government, represented by Oscar Fiumara, and the Commission,represented by Paolo Stancanelli, at the hearing on 27 January 1999,

after hearing the Opinion of the Advocate General at the sitting on 4 March 1999,

gives the following

Judgment

1.

    By order of 29 July 1997, received at the Court on 11 August 1997, the Tribunaledi Genova (District Court, Genoa) referred to the Court for a preliminary rulingunder Article 234 EC (ex Article 177) two questions on the interpretation of Article92 of the EC Treaty (now, after amendment, Article 87 EC).

2.

    The questions were raised in proceedings between Industrie Aeronautiche eMeccaniche Rinaldo Piaggio SpA ('Piaggio‘) and the German company Dornier

Luftfahrt GmbH ('Dornier‘) concerning the repayment of a sum ofITL 30 028 894 382 paid by Piaggio to Dornier.

3.

    Piaggio bought three aircraft from Dornier for the Italian armed forces. Inpayment, as from December 1992, Piaggio made various transfers and assignmentsin favour of Dornier.

4.

    By decree of 28 November 1994, adopted jointly by the Ministers for Industry andthe Treasury (GURI No 281 of 1 December 1994), Piaggio was placed underspecial administration pursuant to Law No 95/79 of 3 April 1979 (GURI No 94 of4 April 1979; 'Law No 95/79‘). That decision followed a judgment of theTribunale di Genova of 29 October 1994, declaring that Piaggio was insolvent andthat it was possible to allow the company the benefit of the special administrationprocedure.

5.

    On 14 February 1996, Piaggio applied to the Tribunale di Genova for, first, adeclaration that all the payments and assignments in favour of Dornier during thetwo years preceding its placing in special administration were null and void vis-à-visthe creditors generally, and, secondly, an order that Dornier repay thecorresponding sums with interest. Piaggio maintained in that respect that Dornier,whilst knowing that Piaggio was in a situation of cessation of payments, receivedfrom it a series of preferential payments totalling ITL 30 028 894 382 for the saleof three aircraft, in breach of the principle that all creditors should be treatedequally.

6.

    Piaggio based its action on Article 67 of the Law on Insolvency, applicable to thepresent case by virtue of the references in Article 1 of Law No 95/79 and Article203 of the Law on Insolvency, which provides that payments made within two yearsprior to the declaration of insolvency and the initiation of the special administrationprocedure may be set aside in favour of the body of creditors.

7.

    In its defence, Dornier has argued, inter alia, that Law No 95/79 is incompatiblewith Article 92 of the Treaty.

8.

    Law No 95/79 established the special administration procedure for large companiesin difficulties.

9.

    In accordance with Article 1(1) of that Law, that procedure may be applied toundertakings which have employed 300 or more workers for at least a year and owedebts amounting to ITL 80.444 thousand million or more, and exceeding five timesthe paid-up capital of the company, to credit institutions, social welfare or socialsecurity institutions, or companies in which the State has a majority shareholding.

10.

    Under Article 1a of Law No 95/79, the procedure is also applicable where thecause of insolvency is the obligation to reimburse sums of at least ITL 50 thousand

million, equivalent to at least 51% of the paid-up capital, to the State, to publicbodies or to companies in which the State has a majority shareholding, by way ofrepayment of State aid which is unlawful or incompatible with the common market,or in connection with financing provided for technological innovation and research.

11.

    In accordance with the first paragraph of Article 2 of Law No 95/79, in order forthe special administration procedure to apply, the undertaking must have beendeclared insolvent by the courts, either pursuant to the Law on Insolvency, or onaccount of failure to pay employees' salaries for at least three months. Afterconsultation with the Minister for the Treasury, the Minister for Industry may thenissue a decree placing the undertaking under special administration and permit it,having regard to the interests of the creditors, to continue trading for a period ofup to two years, which may be extended for a further two years at most, subject tothe assent of the Inter-departmental Committee for Industrial Policy Coordination('the Committee‘).

12.

    Undertakings under special administration are governed by the general rules of theLaw on Insolvency, subject to derogations expressly provided for by Law No 95/79or subsequent laws. Thus, under special administration as under the ordinaryliquidation procedure, the owner of the insolvent company may not dispose of itsassets, which must in principle be used to settle the creditors' claims; interest onexisting debts is suspended; debt payments made during a period preceding thedeclaration of insolvency may be set aside; no individual action for enforcementmay be taken or pursued in respect of the property of the undertaking concerned.However, in the case of special administration, unlike the usual insolvencyprocedure, suspension of any action for enforcement is extended by Article 4 ofLaw No 544/81 to tax debts, in addition to the penalties, interest and increasescharged in respect of belated payment of corporation tax.

13.

    Furthermore, under Article 2a of Law No 95/79, the State may guarantee some orall of the debts contracted by undertakings placed under special administration tofinance their current operations and to reactivate or complete plant, buildings andindustrial equipment, in accordance with the terms and detailed rules laid down bydecree of the Minister for the Treasury, subject to the assent of the Committee.

14.

    It is permitted, in the course of reorganisation, to sell off all the premises belongingto the insolvent undertaking in conformity with the procedures laid down by LawNo 95/79. Under Article 5a thereof, the transfer of all or part of the undertakingis then subject to a flat-rate registration duty of ITL 1 million.

15.

    Moreover, the second paragraph of Article 3 of Law No 19/87 of 6 February 1987(GURI No 32 of 9 February 1987) exempts undertakings placed under specialadministration from payment of fines and pecuniary penalties imposed for failureto pay compulsory social security contributions.

16.

    In accordance with the second indent of Article 2 of Law No 95/79, where anundertaking in special administration is permitted to continue trading, theadministrator appointed to manage it must draw up an appropriate business plan,which is examined by the Committee to determine whether it is compatible with thebroad outlines of national industrial policy before it can be approved by theMinister for Industry. Decisions in matters such as restructuring, sale of assets,liquidation or termination of the period of special administration are subject to theapproval of that minister.

17.

    It is only at the end of the period of special administration that creditors of theundertaking under special administration can obtain payment of their debts, inwhole or in part, through realisation of the undertaking's assets or from renewedprofits. In addition, Articles 111 and 212 of the Law on Insolvency provide that theexpenses arising from special administration and from the company's continuedoperation, including debts which have been contracted, are to be paid out of theproceeds from the realisation of the assets and enjoy priority over claims inexistence at the date when the special administration procedure was initiated.

18.

    The special administration procedure comes to an end following composition withthe creditors, distribution of all the assets, discharge of all debts owed orinadequacy of the assets, or when the undertaking is once again in a position tomeet its obligations and has thus recovered its financial stability.

19.

    By letter E 13/92 (OJ 1994 C 395, p. 4), sent to the Italian Government pursuantto Article 88(1) EC (ex Article 93(1)), the Commission indicated that Law No 95/79appeared to it in various respects to fall within the scope of Article 92 et seq. ofthe Treaty and sought prior notification of all cases in which that Law was to beapplied so that they might be examined in the context of the rules concerning aidfor undertakings in difficulties.

20.

    The Italian authorities having replied that they were prepared to give priornotification only where the State had provided a guarantee pursuant to Article 2aof Law No 95/79, the Commission decided to initiate the procedure provided forin Article 88(2) EC. It does not appear from the documents before the Court thatthat procedure has as yet led to a final decision of the Commission.

21.

    It was in those circumstances that the national court, having doubts as to whetherLaw No 95/79 was compatible with Article 92 of the Treaty, decided to stayproceedings and refer the following questions to the Court of Justice for apreliminary ruling:

'1.    Can a national court request the Court of Justice of the EuropeanCommunities to rule directly on whether a legislative provision of a MemberState is compatible with the provisions of Article 92 of the Treaty (Stateaid)?

2.    If the answer is in the affirmative: can it be argued that, by Law No [95] of3 April 1979 establishing a special administration procedure for largeundertakings in a state of crisis, and in particular by the provisions of thatLaw set out in the grounds of the present order, the Italian State hasgranted to such undertakings as are covered by that Law (that is to say,large undertakings) aid contrary to Article 92 of the Treaty?‘

The admissibility of the reference

22.

    Piaggio argues that the reference is inadmissible because, first, the order forreference does not sufficiently and clearly define the legislative context of theinterpretation requested and, secondly, the questions raised are not relevant for thedetermination of the dispute in the main proceedings, its action for the paymentsto be set aside being based on ordinary insolvency legislation providing thatpayments made during the two years preceding the declaration of insolvency maybe set aside.

23.

    In that respect, whilst it is true that the order for reference only briefly describesits legal context, that fact is not in this case such as to render the referenceinadmissible. That description is sufficient, since it enables the questions posed tobe clearly understood.

24.

    It should, moreover, be borne in mind that it is solely for the national court beforewhich the dispute has been brought, and which must assume responsibility for thesubsequent judicial decision, to determine in the light of the particularcircumstances of the case both the need for a preliminary ruling in order to enableit to deliver judgment and the relevance of the questions which it submits to theCourt (see, inter alia, Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998]ECR I-0000, paragraph 25).

25.

    In this case it need merely be observed that the question whether a system such asthat established by Law No 95/79 must be classified as a new or as an existing aid,which the Court will examine of its own motion hereinafter in the context of theclose cooperation which it is required to establish with national courts, is notirrelevant to the resolution of the dispute in the main proceedings, bearing in mindthe inferences which the national court may have to draw, in the light of Article 92of the Treaty (now, after amendment, Article 87 EC) and Article 88 EC (ex Article93), from the absence of any prior notification to the Commission of the aid systemthat may be in issue.

26.

    There is, moreover, nothing which would justify stating at the outset that, if Piaggiohad been entirely subject to the ordinary insolvency procedure, Dornier's positionwould have been identical in all respects, particularly as regards its chances ofrecovering, at least in part, the debts owing to it, notwithstanding the fact that theordinary insolvency procedure also provides for the setting aside of payments made

during the suspect period preceding the declaration of insolvency. That questionis a matter for the national court to determine.

27.

    It is therefore necessary to answer the questions referred.

Question 1

28.

    In its first question, the national court asks whether it can request the Court to ruledirectly on whether a national measure is compatible with Article 92 of the Treaty.

29.

    It is settled case-law that, within the framework of proceedings brought underArticle 234 EC, the Court does not have jurisdiction to interpret national law or togive a ruling on the compatibility of a national measure with Community law (CaseC-188/91 Deutsche Shell v Hauptzollamt Hamburg-Harburg [1993] ECR I-363,paragraph 27).

30.

    More particularly concerning the review of Member States' compliance with theirobligations under Articles 92 of the Treaty and 88 EC, the national courts and theCommission fulfil complementary and separate roles, as the Court pointed out inits judgment in Case C-39/94 SFEI and Others v La Poste [1996] ECR I-3547,paragraph 41 et seq.).

31.

    Whilst assessment of the compatibility of aid measures with the common marketfalls within the exclusive competence of the Commission, subject to review by theCourt, it is for the national courts to ensure that the rights of individuals aresafeguarded where the obligation to give prior notification of State aids to theCommission pursuant to Article 88(3) EC is infringed.

32.

    In order to determine whether a State measure introduced without taking accountof the preliminary examination procedure laid down in Article 88(3) EC shouldhave been subject to that procedure, a national court may have cause to interpretthe concept of aid contained in Article 92 of the Treaty. If, as the order forreference shows to be the case here, that court has doubts as to whether themeasure in question should be classified as a State aid, it may ask the Commissionfor clarifications on that point or, in accordance with the second and thirdparagraphs of Article 234 EC, it may or must put a question to the Court for apreliminary ruling on the interpretation of Article 92 of the Treaty (SFEI,paragraphs 49 to 51).

33.

    In order therefore to give a useful answer to the national court, it is necessary toconsider whether a system of the kind established by Law No 95/79, and derogatingfrom the rules of ordinary insolvency law, must be classified as State aid within themeaning of Article 92 of the Treaty and should have been notified to theCommission prior to its implementation pursuant to Article 88(3) EC.

Classification as aid

34.

    As the Court has already held, the concept of aid is wider than that of a subsidybecause it embraces not only positive benefits, such as subsidies themselves, butalso measures which, in various forms, mitigate the charges which are normallyincluded in the budget of an undertaking and which, without therefore beingsubsidies in the strict meaning of the word, are similar in character and have thesame effect (Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia[1994] ECR I-877, paragraph 13; Ecotrade, paragraph 34).

35.

    The expression 'aid‘, within the meaning of Article 92(1) of the Treaty, necessarilyimplies advantages granted directly or indirectly through State resources orconstituting an additional charge for the State or for bodies designated orestablished by the State for that purpose (see, in particular, Joined Cases C-52/97to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph13).

36.

    By analogy with what the Court held in Ecotrade concerning Article 4c of the ECSCTreaty, several characteristics of the system established by Law No 95/79,particularly in the light of the facts in the main proceedings, might, if thesignificance attributed to them below were to be confirmed by the national court,make it possible to establish the existence of aid within the meaning of Article92(1) of the Treaty.

37.

    First, it is apparent from the documents before the Court that Law No 95/79 isintended to apply selectively for the benefit of large industrial undertakings indifficulties which owe particularly large debts to certain, mainly public, classes ofcreditors. As the Court held in paragraph 38 of its judgment in Ecotrade, it is evenhighly probable that the State or public bodies will be among the principal creditorsof the undertaking in question.

38.

    It is also important to note that, even if the decisions of the Minister for Industryto place the undertaking in difficulties under special administration and to allow itto continue trading are taken with regard, as far as possible, to the interests of thecreditors and, in particular, to the prospects for increasing the value of theundertaking's assets, they are also influenced, as the Court held in paragraph 39 ofits judgment in Ecotrade and as the national court has confirmed, by the concernto maintain the undertaking's economic activity in the light of national industrialpolicy considerations.

39.

    In those circumstances, having regard to the class of undertakings covered by thelegislation in issue and the scope of the discretion enjoyed by the minister whenauthorising, in particular, an insolvent undertaking under special administration tocontinue trading, that legislation meets the condition that it should relate to aspecific undertaking, which is one of the defining features of State aid (see, to that

effect, Case C-241/94 France v Commission [1996] ECR I-4551, paragraphs 23 and24).

40.

    Next, whatever the objective pursued by the national legislature, it would seem thatthe legislation in question is liable to place the undertakings to which it applies ina more favourable situation than others, inasmuch as it allows them to continuetrading in circumstances in which that would not be allowed if the ordinaryinsolvency rules were applied, since under those rules protection of creditors'interests is the determining factor. In view of the priority accorded to debtsconnected with the pursuit of economic activity, authorisation to continue to pursuethat activity might, in those circumstances, involve an additional burden for thepublic authorities if it were in fact established that the State or public bodies wereamong the principal creditors of the undertaking in difficulties, all the more sobecause, by definition, that undertaking owes debts of considerable value.

41.

    Furthermore, apart from the grant of a State guarantee under Article 2a of LawNo 95/79 which the Italian authorities agreed to notify to the Commission inadvance, placing an undertaking under special administration entails extension ofthe prohibition and suspension of all individual actions for enforcement to tax debtsand penalties, interest and increases for belated payment of corporation tax, releasefrom the obligation to pay fines and pecuniary penalties in the case of failure topay social security contributions, and application of a preferential rate where all orpart of the undertaking is transferred, the transfer being subject to a flat-rateregistration duty of ITL 1 million, whereas the ordinary rate of registration duty is3% of the value of the property sold.

42.

    Those advantages, conferred by the national legislature, could also entail anadditional burden for the public authorities in the form of a State guarantee, a defacto waiver of public debts, exemption from the obligation to pay fines or otherpecuniary penalties, or a reduced rate of tax. It could be otherwise only if it wereestablished that placing the undertaking under special administration and allowingit to continue trading did not in fact entail or should not entail an additional burdenfor the State, compared to the situation that would have arisen had the ordinaryinsolvency provisions been applied. It is for the national court to verify thosematters, after seeking clarification from the Commission if need be.

43.

    In the light of the foregoing, it must be concluded that application to anundertaking of a system of the kind introduced by Law No 95/79, and derogatingfrom the rules of ordinary law relating to insolvency, is to be regarded as giving riseto the grant of State aid, within the meaning of Article 92(1) of the Treaty, whereit is established that the undertaking

—    has been permitted to continue trading in circumstances in which it wouldnot have been permitted to do so if the rules of ordinary law relating toinsolvency had been applied, or

—    has enjoyed one or more advantages, such as a State guarantee, a reducedrate of tax, exemption from the obligation to pay fines and other pecuniarypenalties or de facto waiver of public debts wholly or in part, which couldnot have been claimed by another insolvent undertaking under theapplication of the rules of ordinary law relating to insolvency.

The consequences of lack of prior notification

44.

    Article 88 EC provides that aid is to be kept under constant review by theCommission and lays down the procedures for that purpose. In relation to new aidwhich Member States may intend to grant, there is a preliminary procedure withoutwhich no aid can be considered properly granted. In accordance with the firstsentence of Article 88(3) EC, the Commission must be informed of any plans togrant or alter aid prior to such plans being put into effect.

45.

    The Commission has, however, classified the system under Law No 95/79 as an'existing State aid‘, whilst recognising that that Law, although promulgated afterthe entry into force of the Treaty, was not notified to it in accordance with theprovisions of Article 88(3) EC. Its position is based on reasons of practicalexpediency, including, in particular, its own doubts, which extended over 14 years,concerning the classification of Law No 95/79 as State aid, the expectations oftraders subject to that system, the infrequent application of the system, and theimpossibility in practice of obtaining repayment of the sums which might berecoverable.

46.

    That position cannot be accepted.

47.

    The answer to the question whether aid is new and its introduction thereforerequires the preliminary examination procedure under Article 88(3) EC to be putin motion cannot depend on a subjective assessment by the Commission.

48.

    As the Court has already held in Case C-44/93 Namur-Les Assurances du Crédit vOND [1994] ECR I-3829, at paragraph 13 of the judgment, it is clear from both theterms and purposes of Article 88 EC (ex Article 93) that aid which existed beforethe entry into force of the Treaty and aid which could be properly put into effectunder the conditions laid down in Article 88(3) EC, including aid arising from theinterpretation of that article given by the Court in its judgment in Case 120/73Lorenz v Germany [1973] ECR 1471, paragraphs 4 to 6, is to be regarded asexisting aid within the meaning of Article 88(1) EC, whereas measures to grant oralter aid, where the alterations may relate to existing aid or initial plans notified tothe Commission, must be regarded as new aid subject to the obligation ofnotification laid down by Article 88(3) EC.

49.

    Accordingly, since it is established that a system such as that introduced by Law No95/79 is in itself capable of giving rise to the grant of State aid within the meaningof Article 92(1) of the Treaty, that system cannot be put into operation unless it

has been notified to the Commission and, if it has been so notified, before theCommission has made a decision acknowledging that the aid plan is compatiblewith the common market, or, if the Commission takes no decision within a periodof two months from the notification, before that period has expired (see Lorenz,paragraph 4).

50.

    The answer to the first question must therefore be:

Within the framework of proceedings brought under Article 234 EC, the Courtdoes not have jurisdiction to interpret national law or to give a ruling on thecompatibility of a national measure with Article 92 of the Treaty. However, wherean application is made to a national court that it should draw the appropriateinferences from infringement of the final sentence of Article 88(3) EC, it may seekclarification from the Commission on that point or, in accordance with the secondand third paragraphs of Article 234 EC, it may or must refer a question to theCourt for a preliminary ruling on the interpretation of Article 92 of the Treaty, inorder to determine whether the State measures in question constitute State aidwhich should have been notified to the Commission.

Application to an undertaking of a system of the kind introduced by Law No 95/79,and derogating from the rules of ordinary law relating to insolvency, is to beregarded as giving rise to the grant of State aid, within the meaning of Article 92(1)of the Treaty, where it is established that the undertaking

—    has been permitted to continue trading in circumstances in which it wouldnot have been permitted to do so if the rules of ordinary law relating toinsolvency had been applied, or

—    has enjoyed one or more advantages, such as a State guarantee, a reducedrate of tax, exemption from the obligation to pay fines and other pecuniarypenalties or de facto waiver of public debts wholly or in part, which couldnot have been claimed by another insolvent undertaking under theapplication of the rules of ordinary law relating to insolvency.

Since it is established that a system such as that established by Law No 95/79 is initself capable of giving rise to the grant of State aid within the meaning of Article92(1) of the Treaty, that system cannot be put into operation unless it has beennotified to the Commission and, if it has been so notified, before the Commissionhas made a decision acknowledging that the aid plan is compatible with thecommon market, or, if the Commission takes no decision within a period of twomonths from the notification, before that period has expired.

Question 2

51.

    In the light of the answer to the first question, there is no need to answer thesecond question.

Costs

52.

    The costs incurred by the Italian Government and by the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the action pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Tribunale di Genova by order of29 July 1997, hereby rules:

1.    Within the framework of proceedings brought under Article 234 EC (exArticle 177), the Court does not have jurisdiction to interpret national lawor to give a ruling on the compatibility of a national measure with Article92 of the EC Treaty (now, after amendment, Article 87 EC). However,where an application is made to a national court that it should draw theappropriate inferences from infringement of the final sentence of Article88(3) EC (ex Article 93(3)), it may seek clarification from the Commissionon that point or, in accordance with the second and third paragraphs ofArticle 234 EC, it may or must refer a question to the Court for apreliminary ruling on the interpretation of Article 92 of the Treaty, in orderto determine whether the State measures in question constitute State aidwhich should have been notified to the Commission.

2.    Application to an undertaking of a system of the kind introduced by ItalianLaw No 95/79 of 3 April 1979, and derogating from the rules of ordinarylaw relating to insolvency, is to be regarded as giving rise to the grant ofState aid, within the meaning of Article 92(1) of the Treaty, where it isestablished that the undertaking

    —    has been permitted to continue trading in circumstances in which itwould not have been permitted to do so if the rules of ordinary lawrelating to insolvency had been applied, or

    —    has enjoyed one or more advantages, such as a State guarantee, areduced rate of tax, exemption from the obligation to pay fines and

other pecuniary penalties or de facto waiver of public debts wholly orin part, which could not have been claimed by another insolventundertaking under the application of the rules of ordinary lawrelating to insolvency.

3.    Since it is established that a system such as that established by Law No95/79 is in itself capable of giving rise to the grant of State aid within themeaning of Article 92(1) of the Treaty, that system cannot be put intooperation unless it has been notified to the Commission and, if it has beenso notified, before the Commission has made a decision acknowledging thatthe aid plan is compatible with the common market, or, if the Commissiontakes no decision within a period of two months from the notification,before that period has expired.

Puissochet Jann Gulmann Edward Wathelet

Delivered in open court in Luxembourg on 17 June 1999.

R. Grass

J.-P. Puissochet

Registrar

President of the Fifth Chamber

1: Language of the case: Italian.