Keywords
Summary

Keywords

1. ECSC - State aid to the coal industry - Provisions concerning discrimination between producers - Aid and special charges - Distinction

(ECSC Treaty, Art. 4(b) and (c); Decision No 3632/93)

2. ECSC - State aid to the coal industry - Provisions concerning discrimination between producers - Aid and special charges - Situation of the coal industry in the United Kingdom following restructuring

(ECSC Treaty, Art. 4(b) and (c))

3. ECSC - State aid to the coal industry - Provisions concerning discrimination between producers - Direct effect of Article 4(b) of the ECSC Treaty and the first sentence of Article 9(4) of Decision No 3632/93 - No direct effect of Article 4(c) of the ECSC Treaty - Jurisdiction of the national courts to draw the consequences from an infringement of the first sentence of Article 9(4) of Decision No 3632/93 - Situation of the coal industry in the United Kingdom following restructuring - Repayment of the aid - Measure not capable of restoring the previous situation

(ECSC Treaty, Art. 4(b) and (c); Decision No 3632/93, Art. 9(4))

4. ECSC - State aid to the coal industry - Provisions concerning discrimination between producers - Direct effect of Article 4(b) of the ECSC Treaty and the first sentence of Article 9(4) of Decision No 3632/93 - Undertaking denouncing infringements of those provisions in a complaint to the Commission - No decision by the Commission - Undertaking not bringing action for failure to act - Right to plead the same infringements before the national courts

(ECSC Treaty, Arts 4(b), 35, and 86 first and second paras.; Decision No 3632/93, Art. 9(4))

Summary

1. An aid, for the purposes of Article 4(c) of the ECSC Treaty and Decision No 3632/93 establishing Community rules for State aid to the coal industry, consists of a mitigation of the charges which are normally included in the budget of an undertaking, taking account of the nature or general scheme of the system of charges in question, whereas a special charge is, on the contrary, an additional charge over and above those normal charges. It follows that a single measure cannot at the same time constitute both an aid and a special charge within the meaning of Article 4(c) of the ECSC Treaty.

A measure relating to charges may, in certain cases, constitute a form of discrimination within the meaning of Article 4(b) of the ECSC Treaty, even if it does not have the characteristics either of an aid or of a special charge within the meaning of Article 4(c) of that Treaty. Conversely, an aid does not necessarily constitute a discriminatory measure and neither can it be entirely ruled out that a measure imposing a special charge may not be discriminatory.

( see paras 33-34, 36 )

2. A situation such as that of the United Kingdom coal industry from the date of its restructuring until the transfer to the successful private tendering undertakings of the shares of the Crown-owned companies which succeeded British Coal Corporation as operator - characterised by a difference in treatment between coal undertakings subject to royalty payments in consideration for the right to operate coal mines and coal undertakings exempted from such royalties - implies the existence of aid, within the meaning of Article 4(c) of the ECSC Treaty, but not of special charges within the meaning of that provision. The same situation may constitute discrimination between producers, within the meaning of Article 4(b) of the same Treaty. That would be the case if significant objective differences in situation between, on the one hand, British Coal Corporation and the Crown companies which succeeded it as operator, and, on the other hand, the other operators, did not justify the differentiated treatment applied to the two categories of producers.

Such a situation, as from the time of the transfer of the shares of the Crown-owned companies which succeeded British Coal Corporation as operator to the successful private tendering undertakings, does not reveal the existence of aid or special charges within the meaning of Article 4(c) of the ECSC Treaty, or discrimination between producers, within the meaning of Article 4(b) of that Treaty, since access to the various means of acquiring the lease and licence rights was not, and is not, discriminatory.

( see paras 46, 51, and operative part 1 )

3. Article 4(b) of the ECSC Treaty, in so far as it concerns discrimination between producers, and the first sentence of Article 9(4) of Decision No 3632/93 establishing Community rules for State aid to the coal industry directly confer rights upon individuals which the national courts must protect. On the other hand, Article 4(c) of the ECSC Treaty, in so far as it concerns the compatibility of aid with the common market, does not itself create such rights. However, the national courts have jurisdiction to interpret the concept of aid for the purposes of Article 4(c) of the ECSC Treaty and Article 1 of Decision No 3632/93, with a view to drawing the consequences from any infringement of the first sentence of Article 9(4) of that decision.

In that context, where aid is found to exist in a situation such as that of the United Kingdom coal industry after its restructuring and the transfer to private tendering undertakings of the shares of the Crown-owned companies which succeeded British Coal Corporation, the previous situation cannot be restored by repayment of the aid. On the one hand, the tendering undertakings cannot be asked to repay the aid element in question, since they bought the companies in question under non-discriminatory competitive conditions and, by definition, at the market price, and cannot therefore be regarded as having benefited from an advantage in relation to other market operators. On the other hand, repayment of the aid by the seller of the companies which benefited from the aid is ineffective because, in the situation in question, the latter is indistinguishable, from an economic standpoint, from the provider of the aid.

However, a finding of the existence of unlawful aid, because not authorised by the Commission at the time it was granted, and possibly also of discrimination between producers within the meaning of Article 4(b) of the ECSC Treaty, in the form of certain producers being subject to the payment of royalties whilst others are exempt, cannot lead to the producers who have had to pay royalties being retrospectively exonerated from them.

( see paras 77-79, 93-94, and operative part 2 )

4. The fact that a coal undertaking and an association of which it is a member have not brought an action under Article 35 of the ECSC Treaty to compel the Commission to adopt a position on alleged infringements - denounced in a complaint lodged by them with the Commission - of Article 4(b) of the ECSC Treaty, in so far as it concerns discrimination between producers, or of the first sentence of Article 9(4) of Decision No 3632/93 establishing Community rules for State aid to the coal industry, does not prevent that undertaking from pleading those infringements before the national courts.

The obligation upon the national courts to apply those provisions cannot be limited simply because a complaint has been referred to the Commission raising similar questions on which the latter has not yet ruled, even if the complainant, a party to the proceedings before the national courts, could have brought an action under Article 35 of the ECSC Treaty. Even if the Commission and the national courts may simultaneously have jurisdiction to apply certain provisions of the ECSC Treaty, they do not necessarily have the same powers to uphold the various claims made by individuals on the basis of those provisions. An individual who has lodged a complaint with the Commission based on such provisions cannot therefore be required to pursue his action with the Commission in all circumstances, where appropriate by bringing proceedings under Article 35 of the ECSC Treaty, until the Commission adopts a position on his complaint, where the Commission shows no intention to deal with the complaint and where, as circumstances develop, the individual may have an interest in giving or be obliged to give priority to an action before the national courts.

It is for the courts or tribunals of the Member States, pursuant to the principle of cooperation laid down by the first and second paragraphs of Article 86 of the ECSC Treaty, to ensure the legal protection arising for individuals from the direct effect of Community law. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions, or render the exercise of rights conferred by Community law virtually impossible or excessively difficult.

In the area of State aid, in so far as procedure laid down by national law applies to the recovery of unlawful aid, the relevant provisions of national law must be applied in such a way as not to render the recovery required by Community law virtually impossible. The same principles must be applied where individuals legitimately claim measures other than recovery of State aid after they have established the existence of an infringement of Article 4(b) of the ECSC Treaty, possibly in the form of discrimination between producers, or of an infringement of Article 9(4) of Decision No 3632/93, in the form of the granting of aid without Commission approval.

( see paras 117-123 )