Keywords
Summary

Keywords

1. State aid - Examination by the Commission - Aid of minor importance - Commission Notice on the de minimis rule for State aid - Obligation to give prior notification - None - Duty to provide all the information which would justify the application of the de minimis rule in cases where there is doubt as to compatibility - Scope

(EC Treaty, Arts 5 and 93 (now Arts 10 EC and 88 EC) and Art. 92 (now, after amendment, Art. 87 EC); Commission Notice 96/C 68/06)

2. State aid - Beneficiaries of aid not the recipients of subsidies - Subsidies paid to service stations linked to oil companies by price management system clauses - Aid granted to oil companies

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

3. State aid - Commission decision declaring aid to be incompatible with the common market and ordering it to be discontinued - Scope - Re-establishment of the previously existing situation

(EC Treaty, Art. 93(2), first subpara. (now Art. 88(2), first subpara., EC))

4. State aid - Recovery of unlawful aid - Application of national law - Conditions and limits

(EC Treaty, Art. 93(2), first para. (now Art. 88(2), first para., EC))

5. State aid - Recovery of unlawful aid - Calculation of the amount to be recovered and determination of the addressees of the orders for recovery - Difficulties encountered by the State - Obligation of the Commission and the Member State to cooperate - Scope

(EC Treaty, Arts 5 and 93(2) (now Arts 10 EC and 88(2) EC))

Summary

$$1. Although Commission Notice 96/C 68/06 on the de minimis rule for State aid permits Member States, under certain conditions, to grant small amounts of aid - determined according to objective criteria - without being subject to an obligation to make prior notification, it remains necessary for the Member State intending to grant such aid to provide the Commission with all the information which would justify the application of the de minimis rule in precisely those cases where the Commission has doubts as to the compatibility of the aid with the common market and thus also as to whether the conditions laid down in the Notice have been met. That duty to provide information follows from the general duty of Member States to cooperate with the Commission in good faith, established by Article 5 of the Treaty (now Article 10 EC).

In those circumstances, if a Member States does not provide the Commission with the requested information or if it provides only partial information, the legality of the decision adopted by the Commission, in particular as regards the obligation to state reasons, is to be assessed in the light of the information available to the Commission when the decision was adopted.

A Member State therefore cannot rely on information which it failed to bring to the attention of the Commission in the course of the administrative procedure when contesting the legality of such a decision. This is a fortiori the case where the Member State has refused to reply to an express request for information from the Commission.

( see paras 48-49, 76 )

2. For the purposes of Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC), measures which, in various forms, mitigate the burdens that 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 are considered to constitute aid. In that respect 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

The aid granted to service stations in order to reduce the economic loss suffered as a result of the increase in duty on petroleum products constitutes aid to oil companies where the service stations are linked to the oil companies by price management system clauses aimed at avoiding service stations suffering a lower turnover as a result of increased fuel prices following on from an increase in duty. The aid paid to those service stations has the effect of mitigating the burdens which would normally have affected the budget of companies anxious to maintain their market position in the light of developments in the domestic and international markets. Such aid therefore has economic effects for the companies concerned since the effect of that aid is, in any event, to release those companies from their obligation to bear all or part of the costs of the forecourt discounts offered by dealers to prevent loss of market share.

( see paras 60-63, 66 )

3. The first subparagraph of Article 93(2) of the Treaty (now the first subparagraph of Article 87(2) EC) provides that where the Commission finds that aid granted by a State or through State resources is not compatible with the common market, it is to decide that the State concerned is to abolish or alter such aid within a period of time determined by it. The obligation on a State to abolish aid regarded by the Commission as being incompatible with the common market has as its purpose to re-establish the previously existing situation.

( see para. 89 )

4. In the absence of pertinent provisions of Community law, the recovery of aid which has been declared incompatible with the common market is to be carried out in accordance with the rules and procedures laid down by national law, in so far as those rules and procedures do not have the effect of making the recovery required by Community law practically impossible and do not undermine the principle of equivalence with procedures for deciding similar but purely national disputes.

( see para. 90 )

5. As regards State aid, if a Member State encounters unforeseen difficulties in implementing an order for recovery, it can submit those problems for consideration by the Commission. In such a case the Commission and the Member State concerned must, in accordance with the duty of genuine cooperation, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid.

In particular, the obligation on a Member State to calculate the exact amount of aid to be recovered - particularly where that calculation is dependent on information which that Member State has not provided to the Commission - forms part of the more general reciprocal obligation to cooperate in good faith in the implementation of Treaty rules concerning State aids imposed on the Commission and the Member States.

Similarly, in a case where a Member State has doubts as to the identity of the addressees of the orders for recovery, it can submit those problems to the Commission for its consideration.

( see paras 50, 91-92 )