1. 

In this case, France seeks the annulment of a decision by the Commission finding that certain contributions by the State to redundancy and redeployment costs following a restructuring constituted State aid, albeit qualifying for the derogation under Article 92(3)(c) of the Treaty. France contends that the Commission erred in law in considering that it suffices for a finding of aid that agreements of the type under which the alleged aid was granted are negotiated with the undertakings concerned and that the cost arising therefrom may vary. More generally, France asserts that the measures in question, which it contends are applicable whatever the legal form, size, location and sector of the undertaking concerned, are general measures which do not favour certain undertakings or the production of certain goods and which benefit solely the employees affected by the economic restructuring.

2. 

As subsidiary points, France alleges that the Commission has changed its stance as to measures such as those at issue and that its present stance would have adverse consequences for employment policy.

3.

Article 92(1) of the Treaty provides:

‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’

4.

Article 92(3) sets out a number of types of aid which may be considered to be compatible with the common market, including

5.

Article 93(3) provides:

‘The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid ... ’

6.

The French Code du Travail requires an employer to make redundancy payments and provide certain minimum arrangements facilitating re-employment where employees are dismissed for economic reasons as defined. ( 1 )

7.

Where an undertaking with at least 50 employees proposes to dismiss at least 10 employees in a 30-day period, the legislation imposes an additional obligation on the undertaking to draw up a social plan. ( 2 ) The plan must be sent to the administrative authorities which may put forward any suggestion for additions or amendments taking into account the financial situation of the undertaking. The plan must aim to avoid or reduce the redundancies and provide for measures additional to the minimum arrangements referred to above to facilitate the re-employment of certain employees whose redundancy cannot be avoided. There are no specific measures which are required by law to be included in a social plan, although the legislation ( 3 ) gives as examples of possible measures programmes for internal or external relocation or for training, the creation of new posts and measures for shortening or rearranging work-time.,

8.

Among the measures which may be included in the social plan are certain types of arrangement which, by agreement between the undertaking and the Fonds National de l'Emploi (FNE), a State body, may be financed by the State within defined limits. According to the French Government, the principal types of FNE agreement which may be included in the social plan fall into three broad categories.

9.

First, there are agreements designed to promote alternatives to redundancy, comprising short-time {chômage partiel) and part-time agreements under which the State pays part of the compensation payable to employees put on short time or moving to part-time work.

10.

Second, there are agreements seeking to improve the employees' chances of finding new employment. These comprise redeployment-unit agreements for setting up units helping employees look for work, principally financed by the undertaking with contributions from the State; training-leave agreements under which employees are given partly paid retraining leave, with the State contributing to the statutory payment to the employee during the leave; temporary-allowance agreements under which the State contributes to paying the salary differential of an employee who is taking up a new job at a lower wage; and relocation agreements under which the State contributes to the payment of certain expenses incurred by employees who find employment in another region.

11.

Third, there are agreements enabling older employees to take immediate or progressive early retirement. These comprise FNE special-allowance agreements under which the State contributes to a special allowance payable to employees nearing retirement until they can retire on full pension and progressive pre-retirement agreements under which the State contributes to a subsidy payable to such employees who move to part-time work pending retirement.

12.

The Code du Travail, supplemented by secondary legislation and administrative memoranda, prescribes the basis for calculating the FNE's contributions under each type of agreement and imposes ceilings and/or time-limits on the contribution in each case; both the basis of calculation and the maximum contribution apply to all undertakings in all sectors, subject to exceptions for certain zones with particular economic difficulties which, according to France, account for an insignificant proportion of the FNE's total contributions.

13.

The method of calculating the contribution under each agreement involves a number of variables reflecting the FNE's social objectives, for example the size or location (whether or not in a designated zone) of the undertaking. In certain cases, principally the first and third categories of agreements referred to above, the quality of the social plan is included as a negotiating factor and the State's contribution takes into account the steps taken by the undertaking in the context of the plan to improve the position of those of its employees threatened by redundancy.

14.

The factors relevant to determining the undertaking's effort and the type and level of contribution are stated by the French Government to include the size of the undertaking, the ambit of its business, the economic and financial situation of the entity concerned and of any group to which it belongs, whether the undertaking is abandoning or continuing the business in which the workers concerned operate and whether the site is to be closed completely, immediately or in stages.

15.

The extent to which the State's contribution may vary depending on these factors is often considerable. At one extreme, according to France, in certain circumstances an undertaking may be wholly exempted from its financial participation if it is in serious financial difficulties; at the other, the State may refuse to enter into a particular agreement, although refusals are apparently both rare and liable to be quashed if judicial review is sought. Within those two extremes, there appear to be various norms and ceilings depending on the type of FNE agreement at issue; the ceilings may however apparently be revised if they are insufficient to cover the number of eligible employees.

16.

Kimberly Clark Sopalin (‘Kimberly Clark’), manufacturer and processor of cellulose wadding, has a factory in Sotteville-les-Rouen which in early 1993 employed 465 persons. Economic factors led the company to undertake a general restructuring involving a move to the exclusive manufacture of paper handkerchiefs, the investment of FF 80 million in modernization of the packaging, new organization of production, new working methods and 207 proposed redundancies. In that context a social plan was implemented at a total cost of FF 109 million of which approximately 25%, or FF 27 million, was borne by the State by way of FNE agreements. No notification of proposed aid was made to the Commission under Article 93(3).

17.

On 4 August 1993 the Commission wrote to the French authorities requesting information to enable it to assess the measures under the Treaty provisions on State aid.

18.

On 28 January 1994 France replied stating that economic circumstances and the opening of the single market had led Kimberly Clark to undertake a reorganization involving restructuring and specializing with a view to making its business more competitive and ensuring its continued existence. The restructuring involved a reduction of the workforce by 207 persons. The social plan reflected the ‘legal and regulatory requirements applicable in similar situations’. France stated that in the light of the sensitivity of the matter, which had created considerable local distress, the authorities had required Kimberly Clark to exceed what would normally be required of an undertaking in similar circumstances, in particular as regards the FNE measures, and that it considered that those measures as a whole broadly benefited the employees, while the undertaking for its part made significant investments designed to ensure the continued existence of the factory.

19.

By letter of 4 February 1994 the Commission requested further information in order to be able to assess the compatibility of the measures with the common market, in particular as to (i) which public authorities had financed the balance of the plan after Kimberly Clark's contribution of FF 81 million and on what legal basis; (ii) what the plan would have cost had it been limited to the minimum required by French law and (iii) whether the ‘legal and regulatory requirements applicable in similar situations’ were obligatory for all undertakings reducing their workforce.

20.

On 10 March 1994 France replied to the effect that (i) the aid [sic] granted to Kimberly Clark had been granted in the context of FNE agreements financed by State funds; (ii) the five agreements used in the case of Kimberly Clark were training-leave and redeployment-unit agreements to facilitate external retraining of the employees concerned, part-time and short-time agreements to limit the number of redundancies and special-allowance agreements to permit early retirement and (iii) the minimum cost of a social plan could not readily be calculated. The letter included an enviably brief summary of the legislative provisions governing FNE agreements and the statements that (i) FNE agreements were open to all undertakings prepared to engage in negotiations with the State in which the latter requires steps to be taken in consideration of its contribution and dispenses its aid [sic] on a case-by-case basis depending on the undertaking's financial situation and own efforts and (ii) FNE agreements, in particular those promoting early retirement, were the favoured instrument of the French State for influencing the conduct of undertakings and reducing the social consequences of redundancy.

21.

By letter of 27 June 1994 the Commission notified the French authorities that the contributions by the FNE constituted State aid. It noted that Kimberly Clark's reorganization had been undertaken with a view to improving its competitiveness, that the FNE agreements were negotiated with the undertaking concerned and that the FNE's contribution, financed by the State, was determined on a case-by-case basis depending on the undertaking's financial situation and own efforts. It concluded that the aid granted to Kimberly Clark was liable to distort competition with other manufacturers and processors of wadding, cellulose and paper handkerchiefs and to affect trade within the meaning of Article 92(1) of the Treaty, noting that 15% of Kimberly Clark's turnover was attributable to exports.

22.

The Commission decided, however, in the light of the reduction in capacity involved in the restructuring, of the fact that the dismissed employees appeared to be the principal beneficiaries of the social plan, and of the limited scope of the aid, to apply the derogation provided for in Article 92(3)(c) of the Treaty.

23.

On 2 September 1994 France brought an action under Article 173 of the Treaty seeking annulment of the decision.

24.

The sole ground of challenge is whether the FNE's intervention in the Kimberly Clark restructuring amounts to aid within the meaning of Article 92(1). However, since France's primary submission is that the mechanism whereby the FNE contributes is not State aid within the meaning of Article 92(1) but is a general measure for the benefit of employees designed to fight unemployment, the nature of the FNE mechanism must be considered in order to determine whether or not it is a general measure. If it is a general measure, then provided that it was implemented in favour of Kimberly Clark without any discretion the intervention would be merely the application of a general measure and not aid. If however it is decided that the mechanism is not a general measure, in order to assess the lawfulness of the decision it must in addition be determined whether the particular contribution made in the context of the Kimberly Clark restructuring amounted to aid.

25.

There are three main strands to France's primary submission. First, the mechanism is open to any undertaking and hence does not favour ‘certain undertakings or the production of certain goods’ within the meaning of Article 92(1). Second, use of the scheme is optional so that any contribution by the FNE cannot be regarded as helping an undertaking to satisfy a legal obligation. Finally, it is the employees who are the beneficiaries of the aid from the public authorities, which is totally neutral for the undertaking in competitive terms.

26.

The first of three arguments adduced by France in support of its submission that the FNE scheme is a general measure is that the scheme is open to any undertaking, regardless of its size or status, economic sector or location, and hence does not favour ‘certain undertakings or the production of certain goods’ within the meaning of Article 92(1).

27.

France argues in particular that the criteria according to which the State agrees or refuses to enter into an FNE agreement sought by the undertaking concerned are objective and limited by the conditions laid down by the relevant legislation. It argues that the variable nature of the State's participation cannot suffice to make the contributions aid within the meaning of Article 92(1).

28.

The Commission accepts that the measures at issue are not sectorial or regional measures. It argues however that, where provisions which draw on public resources are implemented at the discretion of the public authorities rather than automatically by reference to objective criteria, one can no longer talk of a ‘general’ measure. The existence of an element of discretion in granting contributions — even in the context of a general system — transforms each application of the system into a specific instance of aid. Those specific instances can vary, albeit within certain margins, which presupposes a difference in the treatment of different operators which is the kernel of the concept of aid within the meaning of Article 92(1).

29.

The Commission acknowledges that measures taken within the framework of employment policy are usually not State aid. However, where public funds are used to reduce the salary costs of undertakings, either directly (for example by recruitment premiums) or indirectly (for example by reductions in fiscal or social charges), the distinction between State aid and general measure becomes less clear. The existence of discretion serves to identify those financial measures promoting employment which are liable to distort competition and affect trade between Member States. In the same way as the criterion of sectorial or regional specificity, the criterion of discretion may establish that a measure is liable to benefit ‘certain undertakings or the production of certain goods’.

30.

Since Article 92(1) refers to aid which favours certain undertakings or the production of certain goods it is usually assumed that measures which are generally applicable do not fall within its scope. Admittedly, there is some force in Advocate General Capotorti's argument in Commission ν Ire-Und ( 4 ) that ‘it is perfectly justifiable to speak of a general principle of the prohibition of public aids to domestic products, if one wishes to avoid the incongruous view that sectorial aids are prohibited and those of wider scope are permitted’; it may, however, be difficult to apply such a principle since the essential distinction between prohibited aid on the one hand and general social and economic policy on the other becomes blurred.

31.

It is settled law that Article 92(1) does not distinguish between measures of State intervention by reference to their causes or aims but defines them in relation to their effects. ( 5 ) Schemes which appear to be general may in fact have the effect of favouring certain undertakings or the production of certain goods in which case they will fall within the scope of Article 92(1) notwithstanding the appearance of generality.

32.

In Commission ν France, ( 6 ) for example, a preferential rediscount rate for exports was held to be aid. France had argued that the fixing of the rate was an exercise of general monetary policy and did not favour certain undertakings or production. As Advocate General Roemer stated in his Opinion, however, the requirement in Article 92(1) that certain undertakings or the production of certain goods be favoured ‘does not mean only aid to individual sectors or geographical areas but also a measure which does not apply to all the undertakings in a Member State which is doubtless the case with aids to exports in relation to many undertakings which produce exclusively for [the] domestic market’. ( 7 )

33.

Similarly in Commission ν Italy ( 8 ) legislation reducing employers' sickness-insurance contributions by different amounts in respect of male and female employees indirectly benefited certain sectors with more female employees and was declared contrary to Article 92(1).

34.

In both the above cases the potentially partial effect of the apparently general scheme was inherent in the structure of the scheme itself: the first applied only to exports and the second contained an express differential in the rates applicable to male and female employees. It was therefore relatively simple to identify benefits to particular categories of undertakings or producers.

35.

In this case the potentially partial effect cannot so readily be discerned from the structure of the scheme. It is indeed the case, as stated by France, that the provisions under which contributions are made are not sectorial or regional measures, one of the criteria developed by the Court for distinguishing between general measures and aid: any undertaking to which the relevant legislation applies may seek to include FNE agreements in its social plan. Whether the State will enter into such agreements and the extent of its contributions thereunder, however, depend on a number of factors.

36.

It is clear from the explanation of the scheme given by France in its correspondence with the Commission and in its pleadings that there is a significant element of discretion in the dispensing of the contributions. France repeatedly refers to the general flexibility of the parameters within which the State contributes. Thus for example it states that the administrative authorities may make any suggestion for supplementing or modifying the social plan, taking account of the economic situation of the undertaking; that the State's participation is adjusted by reference both to its social objectives and to the additional measures assumed by the undertaking to improve the situation of the employees threatened with redundancy; and that FNE agreements are open to all undertakings prepared to engage in negotiations with the State in which the latter requires steps to be taken in consideration of its contribution and dispenses its aid case by case by reference to the undertaking's financial situation and the efforts it has made itself.

37.

France refers to the existence of guidelines defining the authorities' general line of approach in exercising their discretion. These guidelines have not been produced and it must be doubted whether they do much to even out the numerous variables since they are expressed not to override the need to examine each situation individually and they may be derogated from where a particular situation justifies derogation.

38.

It is clear that the FNE's discretion enables it to benefit ‘certain’ undertakings by agreeing or refusing to enter into agreements, by modifying the level of its contribution or by dispensing the undertaking from its financial participation. The French Government's statement that FNE agreements, in particular those promoting early retirement, are the favoured instrument of the French State for influencing the conduct of undertakings and reducing the social consequences of redundancy suggests that all undertakings are not necessarily treated in the same way. Contributions are therefore not necessarily impartially available to undertakings even though the scheme is in principle applicable across all sectors and regions.

39.

France's second argument in support of its submission that the FNE scheme is a general measure is that, since FNE agreements are optional, payments made pursuant thereto are not aid. Undertakings required to draw up a social plan where redundancy is envisaged do not have to include agreements with the FNE. FNE agreements are intended to enable an undertaking to go beyond its minimum legal obligations. Since they are not a legal obligation, the resulting charges on the undertaking are optional and thus the State is not aiding undertakings to satisfy their legal obligations.

40.

The Commission considers that, although the FNE contributions would more obviously be aid if they enabled undertakings to fulfil legal obligations, the fact that FNE agreements are optional does not suffice to preclude the contributions from constituting aid.

41.

I consider that France's argument is flawed for a number of reasons.

42.

First, the State's contributions must be looked at in the wider context in which they arise: the social plan, which may or may not include FNE agreements, is a legal obligation in certain circumstances and thus the overall cost to the undertaking concerned of the particular social plan it draws up cannot be regarded as optional. The Commission is surely correct in distinguishing between the compulsory social plan, which represents an additional cost for the undertaking, and the optional FNE agreements, the fruit of free negotiation with the FNE enabling the undertaking to obtain public financial resources in support of the social plan.

43.

Second, it is not in any event of the essence of aid that a legal obligation is shouldered but that charges normally provided for and borne by an undertaking are mitigated: see Steenkolenmijnen ν High Authority. ( 9 ) To the extent that social plans in practice normally comprise FNE agreements, this argument is thus unfounded. Despite the paucity of information as to common practice, inferences may be drawn from France's description in its letter of 28 January 1994 of the Kimberly Clark social plan as an example of the ‘dispositif légal et réglementaire applicable dans des situations identiques, à savoir:’ followed by a list of the five types of agreement used, and its statement in its application that in 1993 approximately 15000 FNE special-allowance agreements were entered into covering 58000 employees.

44.

It may be noted that France relies on inter alia the definition of aid in Steenkolenmijnen from which the abovementioned proposition is extracted in an attempt to demonstrate that the FNE's interventions pursuant to social plans accompanying the restructuring of undertakings do not satisfy the criteria developed in the case-law. It cites the Court's statement in that case that the concept of aid embraces:

‘... not only positive benefits, such as subsidies themselves, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without, therefore, being subsidies in the strict meaning of the word, are similar in character and have the same effect’.

That statement however appears to me if anything to support the view that the measures in question are aid.

45.

Third, it can be argued that the optional nature of FNE agreements, far from ruling out the possibility of their being aid, supports the contrary view: if entering into an FNE agreement is optional then one must assume that undertakings do so because they draw some benefit therefrom, which suggests that there is aid.

46.

Fourth, the fact that aid is optional does not in any event take it outside the scope of Article 92(1). As stated by Advocate General Darmon in Sloman Neptun: ( 10 )

‘... undue importance should not be attached to the optional nature of the measure. Where it is the result of specific conduct engaged in by a Member State of its own free will, the fact that the contested measure confers a mere option is not sufficient, on its own, to enable it to escape the application of Article 92(1). The structure of the market, and the vigorous competition on that market in the Community, may lead to a de facto situation in which practically all the undertakings which may benefit from the advantage avail themselves of the possibility thus offered to them ... Aid to assist the installation of undertakings in a given geographical area is not of a compulsory nature either, nor is it any easier to identify a priori the precise range of beneficiaries. It is not disputed, however, that such measures constitute aid.’

47.

Finally, in the context of its argument as to the optional nature of the FNE agreements France makes the additional point that the State's share of the financial impact of FNE agreements is usually minor. Even if this is correct — which in the absence of corroborative figures is not obvious from the explanation of the scheme given by France — it is irrelevant to the qualification of the State's contribution as aid. ( 11 )

48.

France's third argument is that it is the employees who are the beneficiaries of the aid from the public authorities, which is totally neutral for the undertaking in competitive terms.

49.

The Commission deals with this argument in the context of whether the specific measures in question benefited Kimberly Clark, which is considered below.

50.

Two points may be made in response to the general argument.

51.

First, the fact that the direct beneficiaries are employees is not in itself sufficient to prevent the assistance from being aid: see for example Steenkolenmijnen ν High Authority ( 12 ) in which a tax-free bonus payable to mining employees working certain shifts and financed out of public funds was held to be aid to the coal-mining industry. The overall effect of the assistance must be looked at, and it is accepted by France that helping employees faced with redundancy may benefit the undertaking's image and general employee relations. As stated by Advocate General Lenz, ‘The question is not ... whether a specific undertaking has been favoured directly through State resources, but whether, on the basis of a State system, that undertaking has received an advantage.’ ( 13 ) This aspect is considered below, in the context of whether Kimberly Clark in fact received a benefit in this case.

52.

In any event undertakings entering into certain types of FNE agreement presumably do in fact receive some direct and even quantifiable benefit in that certain employees whom they would otherwise have lost and to whom redundancy payments would have been due may remain with the undertaking in an admittedly reduced but none the less productive capacity.

53.

The second point is that France's assertion that the aid is totally neutral for the undertaking in competitive terms appears to conflict with numerous statements in its pleadings and its earlier correspondence with the Commission, in particular (i) its statement that FNE agreements are the favoured instrument of the French State for influencing the conduct of undertakings and reducing the social consequences of redundancy and (ii) its acceptance that the participation of the State varies depending on the situation of the undertaking and its efforts in the context of the restructuring to avoid redundancies. These statements suggest that the aid is not neutral vis-à-vis the undertaking, in which case it may have consequences for competition and trade.

54.

It is perhaps worth noting that the fact that contributions under FNE agreements may be conditional on specified steps to be taken by the undertakings concerned does not preclude their being aid. Although in defining State aid the Court has used the term ‘gratuitous advantage’, ( 14 ) that reflects the wording of the question referred by the national court in the case in question. The Court has since accepted as falling within the scope of the Treaty provisions on State aid financial assistance to a restructuring involving commitments by the undertaking to take specific steps (in that case, conversion to a specific type of production). ( 15 )

55.

There is no reason to suppose that the intentions behind the FNE scheme are other than laudable. However, it is settled law that a measure's effects rather than its causes or aims determine whether it falls within Article 92(1) and that in particular the alleged social aim of a measure cannot suffice to shield it from the application of that article. ( 16 ) It may indeed be the case that contributions are in fact dispensed even-handedly across sectors and between undertakings, but it is not necessarily or even obviously so given the existence of discretion. It is therefore impossible to conclude that the FNE scheme is a general measure.

56.

Finally, France's objection that the time-scale of social plans does not allow each proposed FNE intervention to be notified to the Commission should be mentioned. Once it is accepted that the FNE scheme is a framework for the granting of aid rather than a general measure, it is clear that Article 93(3) of the Treaty imposes an obligation on France to notify plans to grant aid within that framework. Procedural inconveniences at the domestic level cannot excuse the breach of Treaty obligations which would occur if France failed to notify a proposed intervention. If France wishes to avoid having to notify each time, the correct procedure would be for it to submit to the Commission for approval — if necessary after modification — full information on the FNE scheme as a whole. The Commission has stated that it is normally in a position to declare such aid compatible with the common market, as indeed it has done with regard to the specific intervention in favour of Kimberly Clark in the decision being challenged in this case.

57.

France's primary submission comprised a single substantive argument for the annulment of the Commission's decision that the FNE's contribution to Kimberly Clark constituted State aid, namely that the scheme as a whole was a general measure. For the reasons outlined above I consider that that argument should be rejected on the ground that, by virtue of the existence of and degree of discretion in the administration of the FNE scheme, the contributions are not in fact necessarily available to all undertakings on an equal footing. However, the validity of the decision depends in addition on the further issue whether the Commission was entitled to find that the specific contribution to Kimberly Clark was State aid.

58.

Although France has not directly addressed that issue in its pleadings, instead concentrating on the more general question whether the FNE scheme as a whole is a general measure, it is clear that what separates the parties is the question whether Kimberly Clark can be regarded as having received any benefit from the State's contributions under the FNE agreements and hence whether competition may have been affected.

59.

In the context of its general submission as to the nature of the FNE scheme France argues that the beneficiaries of contributions made under the FNE agreements are the employees and that there is no benefit to the undertaking in opting for FNE agreements. Such agreements thus have no effect on competition or trade within the common market and are therefore not State aid within the meaning of Article 92(1).

60.

The Commission counters that with two points. First, the social plan cannot be looked at in isolation since it is merely one aspect of the restructuring: the steps an undertaking may be required to take, in particular to avoid redundancies, as a condition of receiving FNE contributions are closely linked to the industrial and financial aspects of the restructuring, so that the aid cannot be regarded as neutral vis-à-vis the undertaking and hence has effects on competition. Second, the agreements in any event do in fact help the undertaking's image and good working relations.

61.

I consider it possible to go further and argue that, since the social plan — and hence a fortiori the FNE agreements — is undertaken in the context of a restructuring, the alleged aid must be assessed in the light of the restructuring as a whole. The restructuring in this case is explicitly stated by France in its letter of 28 January 1994 to have been undertaken with a view to improving Kimberly Clark's competitiveness and to ensuring the continued existence of the factory in question; moreover the restructuring enabled Kimberly Clark to invest FF 80 million in modernizing its product. The contributions were accordingly made in the context of steps being taken for the benefit of the undertaking.

62.

Moreover the undertaking must presumably benefit indirectly in terms of a better image and better working relations from a social plan which is perceived to be of overall benefit to the employees it is making redundant. That seems to be accepted by France, which refers at two points in its reply to the possible positive effect of FNE interventions on working relations within an undertaking.

63.

It is in any event fallacious to argue that, because employees are the beneficiaries of aid, it cannot affect competition or trade. In the shift-bonus subsidy case, ( 17 ) where the subsidized bonus was clearly of direct and immediate benefit to the employees concerned, the Court looked at the overall purpose and effect of the arrangements — avoiding an increase in coal prices — in deciding that the bonus constituted aid.

64.

I accordingly conclude that, although the employees in question are indeed the principal beneficiaries of the contributions, Kimberly Clark also benefited.

65.

I have argued above that the existence and degree of discretion in the administration of the FNE scheme takes it outside the definition of a general measure; any specific implementation may therefore constitute aid. For the reasons set out above, I am of the view that the specific intervention in favour of Kimberly Clark, the subject of the decision being challenged, has the character of aid. I accordingly conclude that the Commission's decision cannot be declared void.

66.

I reach that conclusion on the basis of the information provided by France both in its correspondence with the Commission preceding the adoption of the decision and in its pleadings in this action. It should however also be noted that the legality of a decision must be assessed in the light of the information available to the Commission when the decision was adopted. ( 18 ) In this case, the Commission requested information from France about the functioning of the FNE scheme before it reached its decision. The stated basis for the decision, that Kimberly Clark's restructuring had been undertaken with a view to improving its competitiveness and that the FNE's contribution to the costs of a social plan is negotiated with the undertaking concerned and determined on a case-by-case basis depending on the undertaking's financial situation and own efforts, closely reflected the somewhat sketchy information provided by France. As the Commission has pointed out, it was only in the course of the pleadings that full information about the FNE scheme was provided. Its conclusion that the aid granted to Kimberly Clark was liable to distort competition and to affect trade within the meaning of Article 92(1) of the Treaty is reasonable both in retrospect and a fortiori in the light of the very limited information available to it at the time.

67.

France concludes the arguments in its application by contending that the Commission has never hitherto considered FNE agreements or other analogous national social measures to be State aid within the meaning of Article 92(1) of the Treaty. In support of that proposition France refers to two previous decisions of the Commission on State aid.

68.

The first of these is the Commission's decision concerning aids to Magefesa, a Spanish manufacturing group. ( 19 ) Five measures were considered by the Commission in that decision, of which four were declared to constitute unlawful aid. The fifth measure, invoked by France in this case, consisted in a ministerial decision granting redundant Magefesa workers subsidies apparently designed to ensure that the workers received the amount to which they would have been entitled by way of unemployment benefit had not part of their entitlement to such benefit already been used during previous temporary lay-offs. ( 20 ) In view inter alia of the fact that the decision granting the subsidies was taken after the workers' employment relationship with Magefesa had ceased, the Commission found that the subsidy did not favour the undertaking and hence did not constitute aid. That contrasted with one of the other measures being considered, namely subsidies to Magefesa to enable it to pay part of the salaries and allowances payable by it to those workers. The latter were found by the Commission to be unlawful.

69.

Thus far from conflicting with the Commission's stance as to the status of the FNE agreements, in my view the decision reached in the Magefesa case reflects similar principles.

70.

The other decision ( 21 ) referred to by France in support of its argument appears to have been based on the finding that the aid in question was given pursuant to existing measures which had already been authorized by the Commission as compatible with the common market. ( 22 ) I cannot therefore see that it can be relevant to this case.

71.

Finally, France introduces in its reply an argument to the effect that the Commission's extensive interpretation of the concept of State aid would lead to national provisions designed to combat unemployment being put under the Commission's control.

72.

Again that seems to me to be irrelevant to the present case, which at its broadest is concerned with specific features of one legislative scheme in one Member State designed to reduce the social consequences of redundancies. It is those features, discussed at length above, which have led the Commission — in my view correctly — to conclude that the measures at issue constitute State aid, albeit qualifying for derogation under Article 92(2)(c). That finding cannot have the dramatic and extensive consequences alleged by France.

73.

Accordingly I am of the opinion that: