Keywords
Summary

Keywords

1. Preliminary rulings - Reference to the Court - Conformity of the decision to refer with the rules of national law governing the organisation of the courts and their procedure - Not a matter for the Court to determine

(EC Treaty, Art. 177 (now Art. 234 EC))

2. State aid - Proposed aid - Prohibition of implementation before the Commission's final decision - Direct effect - Scope - Obligations of national courts and tribunals - Limits

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

3. State aid - Prohibition - Derogations - Aid which may be regarded as compatible with the common market - Aid for protection of the environment - Discretion of the Commission

(EC Treaty, Art. 92(1) and (3) (now, after amendment, Art. 87(1) and (3) EC))

4. State aid - Definition - Partial rebate of taxes on energy to all undertakings in the national territory - Excluded

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC))

5. State aid - Definition - Selectivity of the measure - Partial rebate of taxes on energy only to undertakings producing goods - Included - Justification because of the nature or general scheme of the system established - None

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)

Summary

1. In the procedure provided for by Article 177 of the Treaty (now Article 234 EC) it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure.

( see para. 19 )

2. National courts are involved in the system for the review of State aid through the direct effect attributed to the prohibition on implementation of planned aid without the agreement of the Commission, as laid down in the last sentence of Article 93(3) (now Article 88(3), last sentence, EC). National courts must offer to individuals the certain prospect that all appropriate conclusions will be drawn from an infringement of that provision, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures. However, while the national courts may be led, for that purpose, to determine whether or not a national measure must be classified as State aid within the meaning of the Treaty, they may not rule on the compatibility of aid measures with the common market, the final determination on that matter being the exclusive responsibility of the Commission, subject to review by the Court of Justice.

( see paras 26-27, 29 )

3. The basic prohibition of State aid is neither absolute nor unconditional. Thus, Article 92(3) of the Treaty (now, after amendment, Article 87(3) EC) confers on the Commission a wide discretion to declare certain aid compatible with the common market by way of derogation from the general prohibition laid down in Article 92(1) of the Treaty. Environmental protection requirements are capable of constituting an objective by virtue of which certain State aid measures may be declared compatible with the common market.

( see paras 30-31 )

4. National measures which provide for a rebate of energy taxes on natural gas and electricity do not constitute State aid within the meaning of Article 92 of the Treaty (now, after amendment, Article 87 EC) where they apply to all undertakings in national territory, regardless of their activity.

As is apparent from the terms of Article 92(1) of the Treaty, an economic benefit granted by a Member State constitutes State aid only if, by displaying a degree of selectivity, it is such as to favour certain undertakings or the production of certain goods. A State measure which benefits all undertakings in national territory, without distinction, cannot therefore constitute State aid.

( see paras 34-36, and operative part 1 )

5. For the application of Article 92 of the Treaty (now, after amendment, Article 87 EC), it is irrelevant that the situation of the presumed beneficiary of the measure is better or worse in comparison with the situation under the law as it previously stood, or has not altered over time. The only question to be determined is whether, under a particular statutory scheme, a State measure is such as to favour certain undertakings or the production of certain goods within the meaning of Article 92(1) of the Treaty in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question. However, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity.

National measures which provide for a rebate of energy taxes on natural gas and electricity only in the case of undertakings whose activity is shown to consist primarily in the manufacture of goods must be regarded as State aid within the meaning of Article 92 of the Treaty. First, neither the large number of eligible undertakings nor the diversity and size of the sectors to which those undertakings belong provide any grounds for concluding that a State initiative constitutes a general measure of economic policy. Second, any justification for the grant of advantages to undertakings whose activity consists primarily in the production of goods is not to be found in the nature or general scheme of the taxation system established under those national measures. There is nothing in those measures to support the conclusion that the rebate scheme restricted to undertakings which primarily manufacture goods is a purely temporary measure enabling them to adapt gradually to the new scheme because they are disproportionately affected by it. Undertakings supplying services may, just like undertakings manufacturing goods, be major consumers of energy. The ecological considerations underlying the national measures do not justify treating the consumption of natural gas or electricity by undertakings supplying services differently from the consumption of such energy by undertakings manufacturing goods, as energy consumption by each of those sectors is equally damaging to the environment.

( see paras 41-42, 48-52, 55, and operative part 2 )