C34502
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pearle and Others (State aid) [2004] EUECJ C-345/02 (15 July 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C34502.html Cite as: [2004] EUECJ C-345/02, [2004] EUECJ C-345/2 |
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JUDGMENT OF THE COURT (First Chamber)
15 July 2004 (1)
(State aid -“ Definition of aid -“ Collective advertising campaigns in favour of one sector of the economy -“ Financing by means of a special contribution payable by undertakings in that sector -“ Action taken by a body governed by public law)
In Case C-345/02,REFERENCE to the Court of Justice under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings before that court between Pearle BV,Hans Prijs Optiek Franchise BV,Rinck Opticiëns BVand
Hoofdbedrijfschap Ambachten, on the interpretation of Articles 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) and 93(3) of the EC Treaty (now Article 88(3) EC),THE COURT (First Chamber),
after considering the written observations submitted on behalf of:
-“ Pearle BV, Hans Prijs Optiek Franchise BV and Rinck Opticiëns BV, by P.E. Mazel, advocaat, -“ Hoofdbedrijfschap Ambachten, by R.A.A. Duk, advocaat, -“ the Netherlands Government, by S. Terstal, acting as Agent, -“ the Commission of the European Communities, by J. Flett and H. van Vliet, acting as Agents,having regard to the Report for the Hearing,
after hearing the oral observations of the Netherlands Government, represented by H.G. Sevenster, acting as Agent, and of the Commission, represented by H. van Vliet, at the hearing on 29 January 2004,
after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,
gives the following
-˜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.-™
-˜(1) The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the common market.(2) If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 92, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.-¦(3) The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 92, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.-™
The relevant provisions of domestic lawThe Netherlands law on the organisation of business
The Netherlands law on administrative proceedings concerning the organisation of business
-˜1. Is a scheme, such as that under consideration, in which levies are imposed to finance collective advertising campaigns, to be regarded as (part of a measure of) aid within the meaning of Article 92(1) [of the Treaty], and must the plans to implement it be notified to the Commission under Article 93(3) [of the Treaty]? Does that apply only to the benefit derived from the scheme, in the form of the organisation and provision of collective advertising campaigns, or does it also apply to the method of financing it, such as a bye-law instituting levies and/or the decisions imposing levies based thereon? Does it make any difference whether the collective advertising campaigns are offered to (undertakings in) the same business sector as that on which the levy decisions in question are imposed? If so, what difference does it make? Is it relevant in that connection whether the costs incurred by the public body are offset in full by the earmarked levies payable by the undertakings benefiting from the service, so that the benefit derived costs the public authorities, on balance, nothing? Is it relevant in that connection whether the benefit from the collective advertising campaigns is distributed more or less evenly across the field of activity concerned and whether the individual establishments within the branch are also deemed, on balance, to have derived a more or less equal benefit or profit from those campaigns?2. Does the obligation to notify under Article 93(3) [of the Treaty] apply to any aid or only to aid which satisfies the definition in Article 92(1) [of the Treaty]? In order to avoid its obligation to notify, does a Member State have free discretion to determine whether aid satisfies the definition in Article 92(1) [of the Treaty]? If so, how much discretion? And to what extent can such free discretion affect the obligation to notify under Article 93(3) [of the Treaty]? Or is it the case that the obligation to notify ceases to apply only if it is beyond reasonable doubt that no aid is involved?3. If the national court concludes that aid within the meaning of Article 92(1) [of the Treaty] is involved, must it then consider the -˜de minimis-™ rule, as formulated by the Commission in -¦ the [de minimis notice] -¦, when assessing whether the measure in question is to be regarded as aid which ought to have been notified to the Commission under Article 93(3) [of the Treaty]? If so, must that -˜de minimis-™ rule also be applied with retroactive effect to aid which was granted before the publication of the rule, and how must that -˜de minimis-™ rule be applied to aid such as annual collective advertising campaigns which benefit an entire branch of industry?4. Does it follow from the grounds of the judgment in Case C-39/94 SFEIand Others [1996] ECR I-3547, for the purposes of the practical effect of Article 93(3) [of the Treaty], that the national court must annul both the bye-laws and the levy decisions imposed under those bye-laws and that that court must order the public body to repay the levies, even if that is precluded by the rule developed in the Netherlands case-law concerning the formal legal force of the levy decisions? Is it relevant in that regard that repayment of the levies does not in practice eliminate the advantage which the field of activity and the individual undertakings in the branch obtained through the collective advertising campaigns? Does Community law allow repayment of the earmarked levy not to take place, either wholly or in part, if, in the opinion of the national court, the field of activity or the individual undertakings would be placed at an unfair advantage in connection with the circumstance that the advantage obtained as a result of the advertising campaigns cannot be returned in kind?5. In case of failure to notify an aid as laid down in Article 93(3) [of the Treaty], can a public body rely, in order to avoid an obligation to refund the aid, on the abovementioned rule of formal legal force of the levy decision if the person to whom that decision was addressed was not aware, at the time of the adoption of that decision and during the period within which it could have been challenged in administrative proceedings, that the aid of which the levy forms part had not been notified? May an individual assume in this connection that the authorities have fulfilled their obligations to notify aid under Article 93(3) [of the Treaty]?-™
Concerning the first, second and third questionsObservations submitted to the Court of Justice
The Court-™s reply
Concerning the fourth and fifth questions
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Hoge Raad der Nederlanden by judgment of 27 September 2002, hereby rules:On a proper construction of Articles 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) and 93(3) of the EC Treaty (now Article 88(3) EC), bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign organised for the benefit of its members and decided on by them, through resources levied from those members and compulsorily earmarked for the funding of that campaign, do not constitute an integral part of an aid measure within the meaning of those provisions and it was not necessary for prior notification of them to be given to the Commission since it has been established that that funding was carried out by means of resources which that trade association, governed by public law, never had the power to dispose of freely.
Jann |
Rosas |
von Bahr |
Silva de Lapuerta |
Lenaerts |
|
R. Grass |
P. Jann |
Registrar |
President of the First Chamber |
1 -“ Language of the case: Dutch.