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Document 31999D0705

1999/705/EC: Commission Decision of 20 July 1999 on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border (notified under document number C(1999) 2539) (Text with EEA relevance) (Only the Dutch version is authentic)

OJ L 280, 30.10.1999, p. 87–121 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

ELI: http://data.europa.eu/eli/dec/1999/705/oj

31999D0705

1999/705/EC: Commission Decision of 20 July 1999 on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border (notified under document number C(1999) 2539) (Text with EEA relevance) (Only the Dutch version is authentic)

Official Journal L 280 , 30/10/1999 P. 0087 - 0121


COMMISSION DECISION

of 20 July 1999

on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border

(notified under document number C(1999) 2539)

(Only the Dutch version is authentic)

(Text with EEA relevance)

(1999/705/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above(1) and having regard to their comments,

Whereas:

1. PROCEDURE

(1) By letter of 14 August 1997, registered as received on 18 August, the Dutch authorities notified the Commission of their intention to grant aid to 633 Dutch service stations located near the German border. The Commission requested further information by letter of 22 September, to which the Dutch authorities replied by letter of 30 October, registered as received on 31 October. By letter dated 17 December, the Commission requested clarifications in respect of those questions which had not been answered satisfactorily. On 15 January 1998 the Dutch authorities asked for the deadline to be extended. On 22 January the Commission set a new deadline of 10 February. On 16 February it sent a reminder to the Dutch authorities. On 17 February the Dutch authorities supplied some of the information requested.

(2) Given that, after a considerable delay, the Dutch authorities' replies were still contradictory and insufficient, the Commission decided to initiate the Article 88(2) procedure on 2 April 1998. At the Dutch authorities' request, however, initiation of the procedure was postponed. At a meeting on 13 May, the Dutch authorities again requested a postponement and undertook to provide the necessary information. The request was rejected however in view of the considerable time that had elapsed since notification.

(3) On 3 June 1998 the Commission decided to initiate the Article 88(2) procedure. This decision was communicated by letter SG(98) D/6545 of 29 July, which requested the Dutch authorities to submit their observations within one month, i.e. by 29 August.

(4) By letter of 2 September, registered as received on 4 September, the Dutch authorities requested a further one-month delay, i.e. until 29 September. This was granted by the Commission on 9 September. By letter of 25 September, registered as received on 29 September, the Dutch authorities requested another two months from the date of dispatch of the Commission letter, i.e. until 29 November. By letter dated 9 October, the Commission agreed to a final extension of one month, i.e. until 29 October, informing the Dutch authorities that, if the information had not been provided by that date, it might be obliged to adopt a negative decision purely on the basis of the available information. By letter dated 29 October, registered as received on 4 November, the Dutch authorities submitted their observations.

(5) The Commission notice inviting interested parties to submit their comments was published in the Official Journal of the European Communities on 7 October 1998(2). By 9 November, the final deadline indicated in the notice, 10 interested parties had submitted observations. These were communicated by letter dated 21 December to the Dutch authorities, who were given the opportunity to respond.

(6) On 17 February 1999 the Commission ordered the Dutch authorities to provide the necessary information since they had failed to prove that there was no cumulation of aid. This decision was notified to the Dutch authorities by letter SG(99) D/1411 of 25 February, in which the Dutch authorities were requested to submit their observations within 15 working days of the decision being published, i.e. before 18 March.

(7) By letters dated 17 March and 6 April, registered as received on 17 March and 7 April, the Dutch authorities provided (i) a list of all the aid recipients, i.e. 633 service stations, (ii) a copy of the relevant legal basis, namely the temporary aid scheme for service stations near the German border ("Tijdelijke regeling subsidie service stations grensstreek Duitsland"), dated 21 July 1997 and amended on 15 December 1997, (iii) a copy of the agreements concluded by the Ministry of Finance and Senter on implementing the temporary aid scheme(3), and (iv) 574 exclusive purchasing agreements and questionnaires drawn up by Senter with regard to the eligible service stations.

(8) After the Commission had investigated these agreements, it requested additional information by letter dated 5 May 1999. The Dutch authorities provided some of the information requested by letter dated 20 May, registered as received on 21 May.

2. DETAILED DESCRIPTION OF THE MEASURE

(9) The aid is intended for 633 Dutch service stations located near the German border. Natural or legal persons, partnerships or limited partnerships on whose behalf one or more service stations are operated and their successors in title are eligible. A list of aid recipients is attached to this decision.

(10) The purpose of the aid is to compensate for the alleged decline in turnover resulting from the increase in excise duty on light oil that took effect in the Netherlands on 1 July 1997. The Dutch authorities are concerned that Dutch consumers will be tempted to fill up at German service stations in the border area as a result of this increase.

(11) The subsidy is calculated according to the quantity of light oil supplied. It decreases in proportion to the distance from the German border, i.e. service stations located within 10 kilometres of the border will receive NLG 100 (EUR 45) per 1000 litres of light oil supplied and those located between 10 and 20 kilometres from the border will receive NLG 50 (EUR 23) per 1000 litres of light oil supplied(4). These amounts were subsequently doubled.

(12) If excise duty on light oil in Germany is increased, the aid will be reduced by 10/11 and 5/11 respectively of the amount by which the excise duty on light oil per 1000 litres in Germany is increased(5). Total aid would amount to some NLG 126 million (EUR 52,7 million(6)), depending on the turnover recorded by the service stations and on whether excise duty is increased in Germany. The duration of the aid scheme is three years maximum, i.e. until 1 July 2000.

(13) In the notification(7) the Dutch authorities indicate that the aid measure should be caught by the de minimis rule given that a ceiling of EUR 100000 per service station will apply for the duration of the aid measure. In their view, each service station can be regarded as a separate enterprise and the Commission should approve these measures without raising any objections.

(14) According to the Dutch authorities, there are three categories of service station in the Netherlands:

(15) In the first category (dealer-owned/dealer-operated - "Do/Do"), the dealer owns the service station, operates it at his own risk and is linked to the supplier by exclusive purchasing agreements for a period of five years, with an option for a further five years, in accordance with Commission Regulation (EEC) No 1984/83(8).

(16) In the second category (company-owned/dealer-operated - "Co/Do"), the dealer rents the service station, operates it at his own risk and is linked to the oil company by exclusive purchasing agreements in accordance with Regulation (EEC) No 1984/83 for as long as he rents the service station.

(17) In the third and final category (company-owned/company-operated - "Co/Co"), the service station is separated by employees or subsidiaries of the oil companies. The employees/subsidiaries do not operate at their own risk and are not free to choose their supplier, with the result that Regulation (EEC) No 1984/83 does not apply to this category.

(18) The Dutch Ministry of Finance instructed Senter, an executive arm of the Ministry of Economic Affairs responsible for technology, energy and the environment, to implement the measure(9).

(19) With a view to complying with the Commission's request for clarification, Senter sent a questionnaire to the relevant service stations. The following information was requested: (a) the name of the service station; (b) the name of the owner of the service station; (c) the enterprise's legal form; (d) the classification of the service station (Do/Do, Co/Do or Co/Co); (e) the brand of light oil on sale; (f) whether a copy of the exclusive purchasing agreements had been transmitted to Senter; (g) the quantity of light oil sold each year; (h) whether a price management system was operational; (i) whether the oil company controls the dealer in question; and (j) whether the service station is operated on an own-risk basis.

3. GROUNDS FOR INITIATING THE PROCEDURE

(20) The Commission's decision to initiate the Article 88(2) procedure is based on two grounds:

(21) First, the Commission takes the view that the de minimis rule can apply if each service station can be regarded as a separate enterprise. In its opinion, this cannot be the case if several service stations are in the hands of one owner (as can be the case with "company-owned/company-operated" service stations) or if the freedom of "independent" operators is circumscribed by both rental and exclusive purchasing agreements to such an extent that they are controlled de facto by the large oil companies (as can be the case with "company-owned/dealer-operated" service stations).

(22) Second, the Commission considers that, in particular circumstances, the de minimis rule may be interpreted as a rebuttable presumption, namely that, even though the amount of aid involved is small and therefore falls below the de minimis threshold, the rule does not apply if the aid has an effect on trade and competition between the Member States.

(23) Lastly, the Commission set out three requests in its decision with a view to acquiring a clear picture of the service stations' ownership structure and assessing whether the "independent" operators' freedom of action was circumscribed to such an extent that they were controlled de facto by the oil company in question: "1. a list of the owners of the 624(10) service stations, a breakdown of the 624 service stations into the three categories and updated information on the market shares of the 624 service stations, broken down by owner;

2. comparable data on the ownership structure of service stations in the Netherlands as a whole and in the eligible area. If ownership in the Netherlands as a whole is different to that in the eligible area, the Dutch Government should explain why this is so; and

3. copies of all combined exclusive purchasing and rental agreements for each oil company so that the Commission can assess whether the 'independent' operators' freedom of action is circumscribed to such an extent that they are controlled de facto by the oil company in question."

4. GROUNDS FOR COMMISSION DECISION REQUESTING INFORMATION

(24) Given that the Dutch authorities had failed to provide a satisfactory reply to the requests set out in the decision to initiate the procedure, the Commission required them to provide the information requested. The requests were virtually identical to those set out in the Commission's letter to the Dutch authorities dated 22 September 1997 and repeated in its letter dated 17 December 1997. The Commission regarded the Dutch reply as insufficient for the following reasons:

(25) With regard to the first request the Dutch authorities did not provide in particular a list of the 633 service stations and their owners, together with supporting documents, nor did they indicate the breakdown between the three categories. The Dutch authorities also failed to comment on the apparently contradictory data concerning this breakdown, as indicated in the Commission decision to initiate the procedure.

(26) With regard to the second request, the Dutch authorities did not make any specific comments but claimed in general that they were unable to provide adequate answers to questions 2 and 3. This appears to contradict the position of the industry associations, which maintain that there is no reason to suppose that the ownership structure of service stations in the border area differs substantially from that in the rest of the Netherlands.

(27) With regard to the third request, which concerned copies of all combined exclusive purchasing and rental agreements for each oil company, the Commission rejected the Dutch authorities' argument that the industry associations did not have access to such information.

(28) Lastly, in the light of the comments received from third parties following its decision to initiate the procedure, the Commission required the Dutch authorities to provide it with information on the extent to which a price management system (PMS) formed part of the agreements concluded by Q8 with service stations in the eligible area. It also asked them to confirm whether the other oil companies applied a similar scheme in that area.

5. COMMENTS FROM THIRD PARTIES

(29) After the Commission decision to initiate the Article 88(2) procedure in respect of the aid was published, the Commission received comments from 10 interested parties. Of these 10 sets of comments, (a) three originated from individual dealers (BP, BP and De Fakkel), (b) four from oil companies (Q8, Texaco, Shell and Total) and (c) three from industry associations (HOVE, BOVAG and BETA). On 12 March 1999 the Commission also received a letter from the dealer who currently chairs the VEB ("Vereniging Exploitanten Benzinestations" - Federation of Petrol Station Operators). However, it could not take that letter into consideration as it was received after the time limit laid down in the decision to initiate the procedure had expired, i.e. after 9 November 1998.

(30) (a) The three letters from individual dealers reproduced the information requested by Senter in its questionnaire(11). In general, they express concern at the risk of the aid being revoked and possibly recovered. Dealers stress that the aid is necessary because their former customers have filled up in Germany since excise duty on light oil was increased in the Netherlands. De Fakkel BV notified the Commission that it had split its company into several legal entities in order to receive aid for each of its service stations near the German border (five out of 18 in total).

(31) (b) The four oil companies in question (Q8, Texaco, Shell and Total) maintain that the Dutch authorities could not provide the requested exclusive purchasing agreements because they have neither copies of them nor the legal powers to obtain copies. They themselves cannot provide the agreements without obtaining permission in each individual case from each contracting party. Total considers that it is irrelevant whether or not the agreements are provided. Texaco and Total argue that an oil company's market share in the Netherlands, expressed as the quantity of light oil sold, cannot be regarded as reflecting the ownership structure of individual service stations as turnover can vary enormously between stations. According to Texaco, Shell and Q8, Co/Do dealers operate independently and at their own risk. As evidence, Q8 produced a copy of a standard exclusive purchasing agreement for Co/Do service stations. Texaco takes the view that, under the de minimis rule, each service station must be regarded as a separate enterprise. Lastly, Total argues that the aid cannot be regarded as distorting competition because it provides only partial compensation to service stations for losses incurred.

(32) (c) Three industry associations submitted comments after the procedure was initiated, namely NOVE, BETA and BOVAG.

(33) NOVE (Nederlandse Organisatie voor de Energiebranche) represents 1000 service stations and 500 oil suppliers in the Netherlands. NOVE does not agree with the correlation assumed by the Commission between a flagged brand and the ownership structure. Nor does it understand how the existence of a rental agreement can be regarded as evidence of external control. As regards the comprehensive list of owners and proof of ownership, neither the Dutch authorities nor NOVE have access to such information, which only the parties in question can provide.

(34) BETA (Belangenvereniging Tankstations) represents 850 members operating about 1400 service stations. Only independent dealers can become members of BETA, as one of its principal activities is assisting its members in their dealings with the oil companies. Roughly half of BETA members are in the Do/Do category, the remainder being Co/Do. Both categories of service station are operated on an own-risk basis and the aid therefore benefits them alone. According to BETA, 90 % of recipients operate only one service station and should therefore be able to keep the aid. As regards the requested distribution contracts, BETA takes the view that a copy of a standard contract should be sufficient. Lastly, it considers that the measure does not distort competition, given that turnover in the eligible area has declined by 15 to 25 % since the excise duty increase.

(35) According to BOVAG (an association of dealers in private cars and trucks, companies selling cars, motorbikes, caravans and trailers, repair outlets, carwashes, driving schools, car rental and leasing companies, and service stations), the aid granted under the de minimis rule provides only partial compensation to service stations for the losses incurred since excise duty was increased. BOVAG points out that the dealer operates on his own behalf and at his own risk in the case of Co/Do as well. It also considers that aid should be payable per service station even if a dealer owns more than one service station. According to BOVAG, the findings of its internal survey conducted in March 1998 among 3300 service stations confirm the figures provided by the Dutch authorities. A list of eligible service stations can be obtained from Senter. Combined rental and distribution agreements must be obtained direct from the service stations concerned.

6. COMMENTS FROM THE DUTCH AUTHORITIES

(36) The Dutch authorities replied to the Commission decision to initiate the Article 88(2) procedure and to its request for information by four letters (dated (a) 29 October 1998, (b) 17 March 1999, (c) 6 April 1999 and (d) 20 May 1999) which are summarised below:

(37) (a) In their reply of 29 October 1998 concerning the decision to initiate the procedure, the Dutch authorities stated that the first request set out in the Commission's letter of 29 July 1998 had already been answered in part. Since the information concerned by the second and third requests had to be supplied by the industry associations, those bodies had been consulted. According to the Dutch authorities, they had claimed that they were unable to supply the information requested because (i) they did not have it and (ii) they did not understand why it was necessary.

(38) Lastly, the Dutch authorities pointed out that the flag flown by a service station (showing the brand of fuel on sale) did not provide any indication of its ownership structure. They concluded by stating their willingness at all times to discuss alternative ways of obtaining the information with the Commission.

(39) The Dutch authorities attached to their reply an opinion of the law firm De Brauw, Blackstone and Westbroek issued on behalf of the industry associations concerned. First, the firm provides a detailed analysis of the term onderneming ("undertaking") in EC competition law, in particular as laid down in the Merger Regulation and in Articles 81 and 82 of the EC Treaty.

(40) The firm then comments on the requests made by the Commission. The opinion states that some of the information concerned by the first request can be obtained from Senter, chambers of commerce or the land registry office ("Kadaster").

(41) Regarding the second request, the law firm replies that it has no reason to suppose that the ownership structure of service stations in the border area is substantially different from that in the rest of the Netherlands.

(42) Lastly, the firm points out that it is not necessary to provide all contracts for the entire country since the aid concerns the border area only. In any event, the content of those contracts cannot be relevant since the Ministry of Finance regards each service station as a separate enterprise. In conclusion, De Brauw refers to the importance of the principle of equality in Community law.

(43) (b) In their initial reply to the Commission's request for information dated 17 March 1999, the Dutch authorities informed the Commission that they had requested the aid recipients to provide (i) information on the ownership structure of the service stations concerned, (ii) details of the PMS and (iii) copies of any exclusive purchasing agreements which could restrict dealers' independence. Most recipients complied, and their replies were forwarded to the Commission. The Dutch authorities' reply was accompanied by a list of all the recipients indicating their legal status. Following the Commission's request for information, the Dutch authorities claimed that they had contacted the owners of service stations again with a view to obtaining the relevant information. This will be forwarded to the Commission as soon as possible.

(44) (c) In their second reply to the Commission's request for information dated 6 April 1999, the Dutch authorities forwarded to the Commission the remaining replies from aid recipients. This letter was accompanied by (i) a copy of the agreements between the Ministry of Finance and Senter implementing the temporary aid scheme for service stations near the German border(12) and (ii) a copy of the legal basis, which had been amended on 15 December 1997(13). In total, the Commission received 574 exclusive purchasing agreements and questionnaires drawn up by Senter.

(45) (d) By letter dated 5 May 1999, the Commission called on the Dutch authorities to answer urgently any questions in the request for information which had not yet been dealt with and a number of questions relating to the amended legal basis of 15 December 1997, with retroactive effect to 1 July 1997, which had not been notified to the Commission. Lastly, the Commission asked the Dutch authorities to indicate the measures the Netherlands intended to take following the increase of DEM 0,06 (EUR 0,03) per litre in excise duty on light oil introduced in Germany on 1 April 1999.

(46) In reply to that letter, especially as regards questions not yet dealt with, the Dutch authorities provided a table showing the registration number under which the aid was granted, the name of the service station concerned, the legal form under which the service station operated, the category of the service station (Do/Do, Co/Do or Co/Co), whether the applicant for the service station concerned had provided the information requested, the brand of fuel and related articles sold in the service station concerned, and the sort and type of agreements that the Dutch authorities had received from the applicant and forwarded to the Commission. The category (Do/Do, Co/Do or Co/Co) reproduced the data submitted by the applicant. On the basis of the data available to the Dutch authorities, if the various categories are applied to all grant applicants, some 43 % are classified as Do/Do and 17 % as Co/Do. Of the applicants 13 % declared that they were owners, owner/operators or operating on their own behalf and at their own risk. One applicant (0,2 %) indicated the category Co/Co.

(47) According to the Dutch authorities, the fuel brands and related articles indicated are also based on information provided by the aid applicants. A number of applicants (about 23 %) did not answer this question. Consequently, the information on market shares requested by the Commission had to be based on the 77 % of the service stations that replied. It should be noted that, according to the Dutch authorities, those service stations account for some 81 % of the light oil sold in the border area. The market shares calculated using available data are based on the reference period from July 1996 to June 1997 inclusive. These market shares, which thus relate solely to the Dutch-German border area and are given for guidance only, are as follows:

>TABLE>

(48) In their reply, the Dutch authorities emphasise that these market shares cannot provide any indication of the service stations' ownership structure. The fact that a service station flies the flag of an oil company does not mean that it is not operated wholly on the owner's own behalf and at his own risk and can therefore be classified as Do/Do or at least as Co/Do.

(49) The Dutch authorities sent the question regarding the application of a PMS by oil companies other than Q8 to the oil companies and to the operators of the service stations concerned. They have undertaken to forward the replies to the Commission as soon as they receive them.

(50) According to the Dutch authorities, PMS is included in the contracts concluded between Q8 and dealers in the eligible areas, with one exception. Under the contracts concluded by Q8 with its dealers, the latter set their own price for fuel sold. Dealers can thus negotiate with Q8 with a view to including PMS in the basic agreement. Under PMS, Q8 can cover part of the reduction on the recommended price offered by the dealer, in accordance with the conditions laid down in the contract. Standard tables forming part of the basic agreement indicate, for each fuel, the proportion of each cent per litre of extra pump discount that is borne by Q8 and by the dealer respectively. Some dealers prefer to bear in full the risk of additional pump discounts in return for a larger reduction in the basic agreement.

(51) As regards the questions relating to the amended legal basis, the Dutch authorities provided the following explanation. As early as 1 July 1997 aid was restricted to a maximum of EUR 100000 per enterprise, i.e. the natural or legal person on whose behalf and at whose risk one or more service stations were operated. The December 1997 amendment to which the Commission refers did not affect the law's objective in that respect. Conditional notification pursuant to Article 88(3) of the EC Treaty does not apply to the present scheme, but to the Dutch authorities' intention - not yet carried through - of extending its scope. This planned extension of the scheme involved application of the scheme on an individual service station basis. This prompted the Dutch authorities to ask the Commission whether aid on such a basis was admissible under the de minimis rule and, assuming that an extension was not allowed, to notify it as a proposed aid measure. The Dutch authorities emphasise that this proposal will not be put into effect until the Commission has taken a decision on it.

(52) Lastly, as regards the questions regarding the consequences for the aid scheme that the Dutch authorities draw from the recent excise-duty increase in Germany, the Dutch authorities replied that, as of 1 April 1999, excise duty on light oil in Germany was increased by DEM 0,06 (EUR 0,03) per litre, equivalent to an increase of NLG 0,068 per litre, i.e. NLG 68 (EUR 31) per 1000 litres. Pursuant to Article 5(1) of the temporary aid scheme for service stations near the German border, the amount of NLG 100 (EUR 45) for service stations located within 10 kilometres of the German border (category 1) was reduced as of 1 May 1999 by 10/11 of NLG 68, or NLG 62 (EUR 28). The amount of NLG 50 for service stations located between 10 and 20 kilometres of the German border (category 2) was reduced by 5/11 of NLG 68, or NLG 31 (EUR 14). The new amounts came into effect on 1 May 1999 and are therefore NLG 38 (EUR 17) per 1000 litres for category 1 service stations and NLG 19 (EUR 9) per 1000 litres for category 2 service stations.

7. ASSESSMENT OF THE AID

7.1. Legal basis for the assessment

(53) The Dutch authorities have indicated their intention to grant aid to 633 service stations located near the German border. According to point 6 of the notification, the aid ceiling for the entire (maximum) duration of the aid measure (until 1 July 2000) is EUR 100000 per service station. The notification did not indicate the legal basis for this arrangement.

(54) However, the Dutch authorities attached to the notification the Ministerial Decree on the temporary aid scheme for service stations near the German border(14). Article 4 of the Decree states that the aid per applicant amounts to the NLG equivalent of EUR 100000 maximum for the period from 1 July 1997 to 30 June 2000.

(55) The Dutch authorities explained in their cover letter that the measure is less far-reaching and was introduced on 1 July 1997 pending the outcome of the procedure before the Commission. They take the view that the measure is virtually identical to the proposed one, except that it does not apply to service stations as such, but to entrepreneurs, i.e. to the natural or legal persons on whose behalf and at whose risk one or more service stations are operated and to their successors in title. They claim that this aid measure, which does not satisfy the compensation objective in full, is clearly in line with the de minimis rule.

(56) In their letter dated 20 May 1999, the Dutch authorities explained that their reason for notifying the Commission was to extend the scope of the existing scheme. The extension of the scheme related to the application per service station, and not per applicant. Accordingly, they asked the Commission whether aid per service station was admissible under the de minimis rule. According to the Dutch authorities, this proposal has not been put into effect.

(57) Given that the Dutch authorities had notified a proposed aid measure without a legal basis but, at the same time, had implemented a similar aid measure which did have a legal basis but had not been notified, the question arose whether the choice of aid ceiling per service station or per applicant affected the Commission's assessment.

(58) In that connection, it should be noted that the Ministry of Finance instructed Senter to implement the temporary aid for service stations located near the German border as laid down in the relevant scheme. Following the Commission's request for information, Senter provided, via the Dutch authorities, a list of the 633 aid applicants.

(59) Setting the aid ceiling for the existing measure at EUR 100000 per applicant instead of per service station would seem, at first sight, to have eliminated the risk of aid cumulation in situations where the same dealer operates several service stations. However, after examining the 574 exclusive purchasing agreements and questionnaires provided by Senter and corresponding to the list of applicants which it had also provided, the Commission noted that the cumulation rule had not been complied with even when the ceiling was set per applicant, and this for three reasons. First, the same applicant appears several times in the list. Second, there is nothing to prevent an applicant from benefiting from the aid several times by splitting its company into several legal entities, as did De Fakkel BV(15). Third, setting the aid ceiling per applicant does not take account of the actual aid recipient under PMS(16).

(60) Accordingly, the Commission's assessment of the aid measure under the de minimis rule as described below applies both to the aid measure notified and to the aid measure implemented, which is based on the Ministerial Decree on the temporary aid scheme for service stations near the German border.

(61) As there are doubts as to whether both the original aid measure, based on the Ministerial Decree, and the notified extension fall under the de minimis rule, both the original aid measure and the extension should have been notified to the Commission. The Dutch authorities' argument that the notification obligation relates only to the extension of the measure's scope is not, therefore, valid. Similarly, the Dutch authorities should have notified the Commission of the amendments to the legal basis, i.e. the Ministerial Decree of 15 December 1997 on the temporary aid scheme for service stations near the German border, which has retroactive effect to 1 July 1997(17).

(62) Accordingly, the Dutch authorities have failed to meet their obligation under Article 88(3) of the EC Treaty, pursuant to which aid may not be granted until the Commission has made its position known.

7.2. Assessment of the measure in the light of the request for information

(63) Although the Commission called on the Dutch authorities to provide it with the information requested, it still possesses no information or only insufficient information on 250 service stations, i.e. roughly 40 % of the 633 service stations eligible for aid, with the Dutch authorities providing either no information at all (59 service stations) or insufficient information (191 service stations).

(64) The Commission takes the view that the information is insufficient in cases where a service station merely completed the Senter questionnaire without providing copies of its exclusive purchasing agreement, with the result that its reply was not substantiated. For instance, some service stations classified themselves as falling into one of the three categories (Do/Do, Co/Do or Co/Co) without providing any supporting evidence, while others claimed to be independent but failed to substantiate this.

(a) The Dutch authorities provided the Commission with no information at all on the following 59 service stations(18):

7, 11, 13, 46, 175, 201, 202, 222, 234, 249, 252, 258, 280, 291, 297, 298, 314, 323, 350, 364, 372, 373, 382, 393, 405, 407, 411, 416, 420, 476, 491, 510, 512, 531, 533, 535, 539, 551, 552, 553, 557, 568, 580, 588, 590, 599, 604, 610, 613, 620, 621, 625, 642, 644, 658, 663, 764, 765 and 766.

(b) The Dutch authorities provided insufficient information on the following 191 service stations:

2, 8, 9, 20, 27, 31, 41, 42, 59, 60, 61, 66, 68, 73, 76, 78, 82, 84, 94, 101, 102, 103, 105, 106, 107, 108, 115, 116, 120, 121, 122, 124, 126, 130, 131, 134, 145, 149, 152, 154, 156, 158, 162, 164, 167, 182, 183, 184, 187, 196, 200, 205, 210, 212, 214, 216, 220, 225, 226, 227, 233, 237, 238, 240, 245, 250, 257, 267, 269, 270, 282, 286, 288, 295, 300, 307, 309, 310, 321, 327, 328, 331, 334, 340, 345, 349, 351, 353, 365, 369, 374, 375, 376, 378, 379, 380, 385, 389, 394, 399, 401, 402, 404, 418, 423, 434, 444, 447; 449, 450, 451, 455, 456, 460, 467, 471, 477, 478, 480, 481, 489, 498, 499, 500, 501, 502, 503, 504, 505, 507, 508, 509, 511, 513, 515, 516, 517, 520, 522, 526, 529, 530, 532, 534, 538, 542, 543, 546, 549, 554, 555, 556, 565, 566, 567, 571, 577, 579, 581, 585, 589, 591, 596, 602, 605, 609, 611, 612, 615, 616, 617, 618, 623, 624, 626, 629, 632, 637, 638, 639, 641, 643, 645, 646, 649, 653, 659, 662, 665, 666 and 769.

(65) Since not all the requested information has been provided, the Commission cannot rule out the fact that the aid has an appreciable effect on trade and competition between Member States within the meaning of the Commission notice on the de minimis rule for state aid and in accordance with its provisional decision. It will therefore have to take a final decision on the service stations listed above.

7.3. Assessment of the measure in the light of the de minimis rule

7.3.1. Assessment in the light of the second ground for initiating the procedure

(66) The Commission notice on the de minimis rule for state aid(19) stipulates that the de minimis rule "sets a threshold figure below which Article 92(1) can be said not to apply, so that a measure need no longer be notified in advance to the Commission under Article 93(3)".

(67) On the basis of this wording, the Commission took the view in its decision to initiate the procedure that, considering the particular circumstances of the case, the de minimis rule might be interpreted as a rebuttable presumption; in other words, although the amount of the aid is small and therefore falls below the threshold laid down in the de minimis rule, that rule does not apply if the aid has an effect on trade and competition between Member States.

(68) However, after further consideration, the Commission has come to the conclusion that such a rebuttable presumption would undermine the absolute character of the de minimis rule. The idea underpinning the rule is that, in so far as the aid ceiling is complied with, the aid is deemed not to have any appreciable effect on trade and competition and therefore does not fall within the scope of Article 87(1). To derogate from this principle on account of the special circumstances of the case would give rise to legal uncertainty as regards the scope and application of the de minimis rule in general.

(69) Accordingly, the Commission's assessment cannot be based on a possible abuse of the de minimis rule but must be made in the light of the first ground for initiating the procedure, namely the risk of aid cumulation under the de minimis rule, either because one owner possesses several service stations or because the supplier has de facto control over the dealer by virtue of an exclusive purchasing agreement.

7.3.2. Assessment in the light of the first ground for initiating the procedure

(70) According to the amended de minimis rule(20), "the ceiling for aid covered by the de minimis rule will now be ECU 100000 over a three-year period beginning when the first de minimis aid is granted." The notice further stipulates that: "The Commission has a duty to satisfy itself that Member States are not giving their enterprises aid which is incompatible with the common market. The Member States are under an obligation to facilitate the achievement of this task by establishing machinery to ensure that, where aid is given to the same recipient under separate measures all of which are covered by the de minimis rule, the total amount of the aid does not exceed ECU 100000 over a period of three years. In particular, any decision granting de minimis aid or the rules of any scheme providing for aid of this kind must include an explicit stipulation that any additional aid granted to the same recipient under the de minimis rule must not raise the total de minimis aid received by the enterprise to a level above the ceiling of ECU 100000 over a period of three years."

(71) In its decision to initiate the procedure, the Commission took the view that the de minimis rule could apply only if each service station could be seen as a separate enterprise. A service station cannot be regarded as a separate enterprise if one owner possesses several service stations, which may be the case with company-owned/company-operated service stations (Co/Co) or where the freedom of "independent" operators is circumscribed to such an extent by exclusive purchasing and rental agreements that they are controlled de facto by the large oil companies, as in the case of company-owned/dealer-operated service stations (Co/Do).

(72) On the basis of the wording of the de minimis notice quoted above ("any additional aid granted [...] must not raise the total de minimis aid received by the enterprise to a level above the ceiling of ECU 100000 over a period of three years") and that of the Commission's first ground - described above(21) - for initiating the procedure, the comments of third parties (Texaco, Shell, Q8, BETA, BOVAG) and of the Dutch authorities focused on whether the dealers in a Do/Do or Co/Do structure could be regarded as independent and whether it followed that they operated the service station concerned at their own risk.

(73) It follows from the comments of third parties and, in particular, from the arguments put forward by the law firm De Brauw, Blackstone and Westbroek on behalf of the industry associations concerned and attached to the Dutch authorities' reply to the decision to initiate the procedure that their reasoning is based on EC competition law, and in particular on the concept of "undertaking" as laid down in the Merger Regulation and in Articles 81 and 82 of the EC Treaty(22).

(74) However, the concept of "undertaking" within the meaning of the competition rules does not lend itself to interpreting the de minimis rule for state aid. This is because the principles underlying the respective rules are different. In the competition field, the concept of "undertaking" is used, in particular, to identify anti-competitive collusion between firms. Under those rules, "undertaking" is a broad concept, with the degree of control being a determining factor. However, the de minimis rule is concerned ultimately with determining who the actual aid recipient is and whether the de minimis threshold has been complied with for each recipient, irrespective of whether the oil companies control the dealers.

(75) After having examined in greater depth the 574 exclusive purchasing contracts and questionnaires provided by the Dutch authorities, the Commission identified elements of aid cumulation under the de minimis rule even where the dealers were not controlled within the meaning of the competition rules(23).

7.3.2.1. Classification of the 633 service stations following the examination of the exclusive purchasing agreements and the Senter questionnaires

(76) As the Commission has examined each of the 383 exclusive purchasing and rental agreements and can therefore draw direct conclusions from them, some of the information which it previously requested is no longer needed.

(77) For instance, it is no longer necessary to compare the ownership structure of services in the eligible area with that in the Netherlands as a whole. However, the Commission would point out that the Dutch authorities have failed to provide a coherent explanation of the differences as requested. Nor is it necessary to check whether the market shares of the oil companies concerned reflect the ownership structure. Instead of identifying the ownership structure on the basis of the market share of a given oil company, the Commission has opted to determine the "flag shares" of certain oil companies, in line with the view of the Dutch authorities and of most third parties. An oil company's "flag share" gives the number of service stations marketing its brand.

(78) By letter dated 20 May 1999, the Dutch authorities submitted a list of the "flag shares" of service stations in the border area. According to them, this list is based on information provided by the applicants (77 % of service stations replied, representing 81 % of sales in the border area).

>TABLE>

(79) On the basis of the individual analysis of the 383 combined exclusive purchasing and rental agreements provided by the Dutch authorities, the Commission arrived at the following breakdown of "flag shares":

>PIC FILE= "L_1999280EN.009701.EPS">

(80) There are some notable discrepancies between the findings of the Dutch authorities and those of the Commission in respect of a number of brands, such as BP, Esso and Avia. These discrepancies can be attributed to the different sources of information. As the Commission examined the contracts individually whereas the Dutch authorities based their list on the information supplied by the applicants without supporting evidence, the Commission has decided that in future it will base its assessment of the measures on its own statistics.

(81) In addition, on the basis of the 574 exclusive purchasing agreements and Senter questionnaires, of which 191 did not contain sufficient information for classification purposes, and since 59 service stations did not provide any information at all, the Commission has established the following classification of the 633 eligible service stations:

>PIC FILE= "L_1999280EN.009702.EPS">

Category I corresponds to Do/Do, category II to Co/Do and category III to Co/Co.

7.3.2.2. Company-owned/company-operated (Co/Co) service stations

(82) On the basis of the 574 exclusive purchasing agreements and questionnaires, the Commission has concluded that there is cumulation of aid in the Co/Co category given that the same company owns and operates several service stations (pure Co/Co). Although, strictly speaking, not a Co/Co service station, the situation in which the same dealer has applied for aid more than once and therefore appears several times in the list of eligible recipients (de facto Co/Co) also belongs to that category because of similar cumulation effects. Of the 633 eligible service stations 49 (8 %) belong to the pure/de facto Co/Co category. The cumulation of aid occurs either at the level of the oil company (pure Co/Co) or at the level of the service station (de facto Co/Co).

(a) The Commission has identified the following service stations as pure "Co/Co":

39, 147, 217, 218, 221, 276, 281, 287, 301, 319, 409, 414, 433, 457, 469, 486, 488, 541, 564, 575, 593, 614, 648, 655, 752, 760, 763 and 768.

(b) It has identified the following Do/Do and Co/Do service stations as de facto Co/Co service stations because the cumulation effect is almost identical to that described above:

111, 112, 170, 174, 272, 273, 274, 333, 339, 347, 348, 359, 360, 362, 363, 395, 396, 432, 586, 587 and 754.

7.3.2.3. Do/Do and Co/Do service stations with a PMS clause in their exclusive purchasing agreements

7.3.2.3.1. Dealer-owned/dealer-operated (Do/Do) service stations

(83) After examining the Co/Co category, the Commission turned its attention to the Do/Do category of service station. On the basis of their exclusive purchasing agreements, it found that there was a risk of aid cumulation for some service stations at the level of the oil company because of the inclusion of a PMS clause. Of the 179 Do/Do contracts, this is the case for 71 (11 % of the 633 eligible service stations).

(84) The purpose of a PMS clause is to protect the dealer's turnover against competing petrol outlets in the immediate vicinity of his service station. The clause usually stipulates that the oil company may bear part of the cost of the forecourt discount granted by the dealer in so far as domestic and/or international market conditions make a temporary or long-term adjustment of these discounts desirable or necessary. Consultations between the parties are often necessary before such reductions are introduced. The actual aid provided by the supplier is determined by means of a distribution table or participation arrangements. Its amount is normally indicated on the invoice.

(85) The PMS clause obliges the supplier to compensate the dealer, at least in part, for losses incurred as a result of extraordinary market conditions, including market conditions deriving from legal obligations such as increases in excise duty. By granting aid to dealers as compensation for losses of income resulting from increases in excise duty on light oil in the Netherlands, the Dutch Government is, in fact, compensating the supplier in full or in part for its obligation under the PMS clause. If this aid were not granted, the supplier would have to compensate the dealer. Where the supplier has concluded distribution agreements with several dealers, it will benefit a corresponding number of times over.

(a) The Commission has designated the following as Do/Do service stations without a PMS clause:

3, 4, 10, 14, 17, 19, 21, 23, 24, 29, 32, 33, 47, 51, 52, 53, 62, 65, 69, 70, 75, 80, 83, 85, 92, 93, 95, 118, 119, 128, 129, 137, 138, 148, 151, 157, 173, 177, 181, 188, 191, 194, 204, 209, 213, 223, 229, 231, 232, 235, 239, 243, 247, 253, 260, 261, 262, 264, 275, 277, 285, 289, 303, 306, 311, 316, 322, 324, 335, 342, 354, 370, 381, 391, 397, 398, 406, 415, 421, 424, 425, 426, 458, 466, 470, 472, 487, 518, 521, 524, 525, 528, 558, 570, 582, 594, 597, 607, 619, 627, 628, 636, 650, 652, 656, 657, 660 and 750.

(b) It has designated the following as Do/Do service stations with a PMS clause:

1, 26, 34, 40, 54, 56, 63, 79, 81, 86, 97, 113, 114, 135, 142, 155, 159, 160, 165, 166, 168, 172, 176, 179, 185, 206, 207, 208, 224, 241, 242, 244, 259, 263, 283, 284, 299, 308, 318, 320, 329, 337, 344, 352, 357, 368, 377, 383, 417, 419, 422, 429, 438, 440, 442, 454, 459, 461, 463, 473, 474, 483, 485, 497, 514, 606, 640, 661, 751, 753 and 755.

7.3.2.3.2. Company-owned/dealer-operated (Co/Do) service stations

(86) Lastly, the Commission examined the remaining stations, which fall into the Co/Do category. As with the Do/Do category, it found that there was a risk of aid cumulation for some service stations at the level of the oil company because of the inclusion of a PMS clause. Of the 155 Co/Do contracts, this is the case for 80 (or 13 % of the 633 eligible service stations). The conclusion is the same as for Do/Do service stations. This figure includes contracts containing a PMS clause as well as clauses guaranteeing the dealer a minimum income since the latter have the same effect as a PMS clause.

(a) The Commission has designated the following as Co/Do service stations without a PMS clause:

15, 36, 43, 44, 48, 50, 67, 77, 87, 88, 89, 90, 91, 110, 132, 133, 139, 140, 141, 144, 146, 163, 186, 189, 192, 193, 197, 199, 215, 219, 251, 278, 290, 292, 294, 302, 304, 305, 312, 313, 317, 326, 330, 336, 338, 341, 343, 358, 361, 384, 388, 400, 413, 430, 437, 439, 445, 448, 453, 462, 482, 492, 493, 496, 537, 559, 562, 563, 574, 603, 622, 647, 756, 757 and 767.

(b) It has designated the following as Co/Do service stations with a PMS clause:

5, 6, 12, 16, 18, 22, 25, 28, 30, 35, 37, 38, 45, 49, 55, 58, 64, 71, 72, 74, 96, 99, 100, 104, 117, 123, 125, 127, 136, 143, 150, 153, 161, 169, 171, 178, 180, 190, 195, 198, 203, 211, 228, 230, 236, 246, 248, 254, 255, 265, 266, 268, 271, 279, 296, 315, 325, 332, 355, 367, 371, 387, 427, 428, 436, 441, 443, 446, 452, 464, 484, 494, 506, 519, 523, 536, 578, 584, 608 and 762.

7.3.2.4. Do/Do and Co/Do service stations which do not have similar effects to Co/Co service stations and have not concluded exclusive distribution agreements containing a PMS clause:

(87) It follows from the above that there is no cumulation of aid where Do/Do or Co/Do service stations do not have similar effects to Co/Co service stations and that there is no cumulation of aid at the level of the oil company in the absence of a PMS clause. Accordingly, this aid is covered by the de minimis rule and Article 87(1) does not therefore apply.

(a) The Commission has designated the following as Do/Do service stations which do not have similar effects to Co/Co service stations and have not concluded exclusive distribution agreements containing a PMS clause:

3, 4, 10, 14, 17, 19, 21, 23, 24, 29, 32, 33, 47, 51, 52, 53, 62, 65, 69, 70, 75, 80, 83, 85, 92, 93, 95, 118, 119, 128, 129, 137, 138, 148, 151, 157, 173, 177, 181, 188, 191, 194, 204, 209, 213, 223, 229, 231, 232, 235, 239, 243, 247, 253, 260, 261, 262, 264, 275, 277, 285, 289, 303, 306, 311, 316, 322, 324, 335, 342, 354, 370, 381, 391, 397, 398, 406, 415, 421, 424, 425, 426, 458, 466, 470, 472, 487, 518, 521, 524, 525, 528, 558, 570, 582, 594, 597, 607, 619, 627, 628, 636, 650, 652, 656, 657, 660 and 750.

(b) It has designated the following as Co/Do service stations which do not have similar effects to Co/Co service stations and have not concluded exclusive distribution agreements containing a PMS clause:

15, 36, 43, 44, 48, 50, 67, 77, 87, 88, 89, 90, 91, 110, 132, 133, 139, 140, 141, 144, 146, 163, 186, 189, 192, 193, 197, 199, 215, 219, 251, 278, 290, 292, 294, 302, 304, 305, 312, 313, 317, 326, 330, 336, 338, 341, 343, 358, 361, 384, 388, 400, 413, 430, 437, 439, 445, 448, 453, 462, 482, 492, 493, 496, 537, 559, 562, 563, 574, 603, 622, 647, 756, 757 and 767.

7.4. Assessment of the compatibility of the measures constituting aid within the meaning of Article 87(1)

7.4.1. Aid within the meaning of Article 87(1)

(88) The Commission examined the aid granted to (a) pure Co/Co service stations, (b) de facto Co/Co service stations and (c) Co/Do and Do/Do service stations with an exclusive purchasing agreement containing a PMS clause in the light of Article 87(1) of the EC Treaty, which states that 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 is incompatible with the common market in so far as it affects trade between Member States.

(89) The aid granted constitutes aid within the meaning of Article 87(1) for the following reasons:

(90) First, the aid was granted using state resources since the Dutch Ministry of Finance instructed Senter, an arm of the Ministry of Economic Affairs responsible for technology, energy and the environment, to implement the measure.

(91) Second, the aid favours service stations located near the border with Germany over those elsewhere in the Netherlands and in neighbouring Member States, such as Germany and Belgium.

(92) Third, since these service stations receive compensation for the excise-duty differential on light oil between Germany and the Netherlands, Dutch consumers have an incentive to fill up in the Netherlands instead of in Germany, distorting competition on the light oil market in the border area.

(93) Lastly, the measure is likely to affect trade between Member States for three reasons. First, the eligible service stations are located near the border with Germany. Second, the very purpose of the measure is to compensate the owners of these service stations for the alleged decline in turnover resulting from Dutch consumers filling up at German service stations as a consequence of the increase in excise duty on light oil in the Netherlands. Third, the aid is conditional on rising duty in Germany.

7.4.2. Compatibility of the aid measures

(94) The aid constitutes operating aid because it is designed to avoid losses which the eligible service stations would have to incur in the course of their normal daily business. Its sole purpose is to compensate the owners of the service stations concerned for the alleged decline in turnover resulting from Dutch consumers filling up at German service stations following the increase in excise duty on light oil that took effect in the Netherlands on 1 July 1997. However, the Commission would point out that the state aid rules are not an appropriate instrument for harmonising excise-duty differentials between Member States. In that connection, it would also point to the artificial nature of the aid measure, given that the German Government increased excise duty on light oil by 6 pfennigs (EUR 0,03) per litre with effect from 1 April 1999.

(95) In addition, strong doubts remain as to the need for the aid, especially as regards service stations which have concluded an exclusive purchasing agreement with a PMS clause. If no state aid had been forthcoming, these service stations would, under the PMS clause, have turned to their respective suppliers with a view to obtaining at least partial compensation for the losses incurred. As described above(24), by granting the aid in question, the Dutch authorities indirectly assisted the suppliers, given that they paid something that would normally have been paid by the suppliers. It is difficult to accept that multinational oil companies should need state aid to cope with an increase in excise duty on light oil in the Netherlands.

(96) In the light of the above and in the absence of any compensatory effects, operating aid of this kind qualifies for one of the derogations set out in Article 87 of the EC Treaty or Article 61 of the EEA Agreement only in exceptional circumstances.

(97) The derogations set out in Article 87(2) of the EC Treaty do not apply in this case in view of the aid's characteristics and since the aid is not designed in such a way as to comply with the conditions governing the application of those derogations.

(98) Operating aid may be granted on an exceptional and temporary basis to offset operating losses in Article 87(3)(a) regions. However, the derogation from that Article does not apply here given that the eligible area, namely that part of the Netherlands located no more than 20 kilometres from the German border, is not recognised as an area with an abnormally low standard of living or serious underemployment.

(99) Nor can the aid in question be regarded as compatible with the common market under the derogation set out in Article 87(3)(c) of the EC Treaty as aid to facilitate the development of certain economic areas which does not adversely affect trading conditions to an extent contrary to the common interest.

(100) The aid is clearly not intended to promote the execution of an important project of common European interest within the meaning of Article 87(3)(b).

(101) Lastly, the aid measures do not promote culture and heritage conservation within the meaning of Article 87(3)(d).

(102) Accordingly, the aid granted to (a) pure Co/Co service stations, (b) de facto Co/Co service stations and (c) Co/Do and Do/Do service stations with an exclusive purchasing agreement comprising a PMS clause does not qualify for eligibility for one of the derogations under Article 87(3) of the Treaty.

8. CONCLUSION

(103) In the light of the above and, in particular, considering that:

(a) in spite of the request for information, the Dutch authorities have failed to provide all the requested information in respect of 250 service stations;

(b) there is cumulation of aid as regards pure Co/Co service stations given that the same company owns and operates several service stations and as regards de facto Co/Co service stations given that the same dealer has applied for aid more than once and therefore appears several times on the list of eligible recipients (49 service stations);

(c) by granting the aid, the Dutch Government can be seen as in practice compensating the supplier, in full or in part, for its obligation under the PMS clause with regard to Do/Do service stations, thereby giving rise to cumulation of aid at the level of the supplier (nine suppliers (Shell, BP (including Aral, Mobil, OK and Bim), Elf, Esso, Texaco, Total, Fina, Q8 and Avia) for 151 service stations).

(104) The Commission adopts a negative decision regarding the aid granted to these service stations (in total 450 of the 633 eligible service stations) because these measures are not compatible with the common market and the functioning of the EEA Agreement.

(105) As regards the other service stations, which are not de facto or pure Co/Co and have not concluded exclusive purchasing agreements with a PMS clause, namely 183 of the 633 eligible service stations, the Commission finds that the aid given to them is covered by the de minimis rule and therefore does not constitute aid within the meaning of Article 87(1) of the EC Treaty.

(106) Given that the Dutch authorities granted the aid to the categories referred to in 103(a), (b) and (c) above in some cases before the Commission had taken a final decision under the Article 88(2) procedure, this aid must be repaid. Pure and de facto Co/Co service stations which have failed to provide any information must repay the aid. In the case of Do/Do and Co/Do service stations which have concluded an exclusive purchasing agreement containing a PMS clause, the aid must be repaid by the actual recipients, i.e. the eight oil companies concerned. These companies are indicated in the annexed list of the 633 eligible service stations,

HAS ADOPTED THIS DECISION:

Article 1

The aid which the Netherlands has implemented for 183 service stations located near the German border, amounting to EUR 100000 per service station, is covered by the de minimis rule and does not therefore constitute aid within the meaning of Article 87(1) of the EC Treaty. The service stations concerned are listed below. The numbers correspond to the list of applicants provided in the letter from the Dutch Government dated 7 April 1999. The list is annexed to this decision.

(a) Dealer-owned/dealer-operated (Do/Do) service stations:

3, 4, 10, 14, 17, 19, 21, 23, 24, 29, 32, 33, 47, 51, 52, 53, 62, 65, 69, 70, 75, 80, 83, 85, 92, 93, 95, 118, 119, 128, 129, 137, 138, 148, 151, 157, 173, 177, 181, 188, 191, 194, 204, 209, 213, 223, 229, 231, 232, 235, 239, 243, 247, 253, 260, 261, 262, 264, 275, 277, 285, 289, 303, 306, 311, 316, 322, 324, 335, 342, 354, 370, 381, 391, 397, 398, 406, 415, 421, 424, 425, 426, 458, 466, 470, 472, 487, 518, 521, 524, 525, 528, 558, 570, 582, 594, 597, 607, 619, 627, 628, 636, 650, 652, 656, 657, 660 and 750.

(b) Company-owned/dealer-operated (Co/Do) service stations:

15, 36, 43, 44, 48, 50, 67, 77, 87, 88, 89, 90, 91, 110, 132, 133, 139, 140, 141, 144, 146, 163, 186, 189, 192, 193, 197, 199, 215, 219, 251, 278, 290, 292, 294, 302, 304, 305, 312, 313, 317, 326, 330, 336, 338, 341, 343, 358, 361, 384, 388, 400, 413, 430, 437, 439, 445, 448, 453, 462, 482, 492, 493, 496, 537, 559, 562, 563, 574, 603, 622, 647, 756, 757 and 767.

Article 2

The aid which the Netherlands has implemented for 450 service stations located near the German border, amounting to more than EUR 100000 per recipient over a three-year period, is incompatible with the common market and with the functioning of the EEA Agreement. The service stations concerned are listed below. The numbers correspond to the list of applicants provided in the letter from the Dutch Government dated 7 April 1999. The list is annexed to this decision.

(a) Service stations for which the Dutch authorities provided no information or insufficient information:

"no information": 7, 11, 13, 46, 175, 201, 202, 222, 234, 249, 252, 258, 280, 291, 297, 298, 314, 323, 350, 364, 372, 373, 382, 393, 405, 407, 411, 416, 420, 476, 491, 510, 512, 531, 533, 535, 539, 551, 552, 553, 557, 568, 580, 588, 590, 599, 604, 610, 613, 620, 621, 625, 642, 644, 658, 663, 764, 765 and 766;

"insufficient information": 2, 8, 9, 20, 27, 31, 41, 42, 59, 60, 61, 66, 68, 73, 76, 78, 82, 84, 94, 101, 102, 103, 105, 106, 107, 108, 115, 116, 120, 121, 122, 124, 126, 130, 131, 134, 145, 149, 152, 154, 156, 158, 162, 164, 167, 182, 183, 184, 187, 196, 200, 205, 210, 212, 214, 216, 220, 225, 226, 227, 233, 237, 238, 240, 245, 250, 257, 267, 269, 270, 282, 286, 288, 295, 300, 307, 309, 310, 321, 327, 328, 331, 334, 340, 345, 349, 351, 353, 365, 369, 374, 375, 376, 378, 379, 380, 385, 389, 394, 399, 401, 402, 404, 418, 423, 434, 444, 447, 449, 450, 451, 455, 456, 460, 467, 471, 477, 478, 480, 481, 489, 498, 499, 500, 501, 502, 503, 504, 505, 507, 508, 509, 511, 513, 515, 516, 517, 520, 522, 526, 529, 530, 532, 534, 538, 542, 543, 546, 549, 554, 555, 556, 565, 566, 567, 571, 577, 579, 581, 585, 589, 591, 596, 602, 605, 609, 611, 612, 615, 616, 617, 618, 623, 624, 626, 629, 632, 637, 638, 639, 641, 643, 645, 646, 649, 653, 659, 662, 665, 666 and 769.

(b) Company-owned/company operated (Co/Co) service stations:

"pure": 39, 147, 217, 218, 221, 276, 281, 287, 301, 319, 409, 414, 433, 457, 469, 486, 488, 541, 564, 575, 593, 614, 648, 655, 752, 760, 763 and 768;

"de facto": 111, 112, 170, 174, 272, 273, 274, 333, 339, 347, 348, 359, 360, 362, 363, 395, 396, 432, 586, 587 and 754.

(c) Dealer-owned/dealer-operated (Do/Do) service stations with a price management system (PMS):

1, 26, 34, 40, 54, 56, 63, 79, 81, 86, 97, 113, 114, 135, 142, 155, 159, 160, 165, 166, 168, 172, 176, 179, 185, 206, 207, 208, 224, 241, 242, 244, 259, 263, 283, 284, 299, 308, 318, 320, 329, 337, 344, 352, 357, 368, 377, 383, 417, 419, 422, 429, 438, 440, 442, 454, 459, 461, 463, 473, 474, 483, 485, 497, 514, 606, 640, 661, 751, 753 and 755.

(d) Company-owned/dealer-operated (Co/Do) service stations with a price management system (PMS):

5, 6, 12, 16, 18, 22, 25, 28, 30, 35, 37, 38, 45, 49, 55, 58, 64, 71, 72, 74, 96, 99, 100, 104, 117, 123, 125, 127, 136, 143, 150, 153, 161, 169, 171, 178, 180, 190, 195, 198, 203, 211, 228, 230, 236, 246, 248, 254, 255, 265, 266, 268, 271, 279, 296, 315, 325, 332, 355, 367, 371, 387, 427, 428, 436, 441, 443, 446, 452, 464, 484, 494, 506, 519, 523, 536, 578, 584, 608 and 762.

The actual recipients in categories (c) and (d) are the oil companies with which these service stations concluded exclusive purchasing agreements. The annexed list indicates the oil company concerned in each individual case.

Article 3

1. The Netherlands shall take all necessary measures to recover from the recipients the aid referred to in Article 2 and unlawfully made available to them.

2. Recovery shall be effected in accordance with the procedures of national law. The aid to be recovered shall include interest from the date on which it was made available to the recipients until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.

Article 4

The Netherlands shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.

Article 5

This Decision is addressed to the Kingdom of the Netherlands.

Done at Brussels, 20 July 1999.

For the Commission

Monika WULF-MATHIES

Member of the Commission

(1) OJ C 307, 7.10.1998, p. 10.

(2) OJ C 307, 7.10.1998, p.10.

(3) See point 18.

(4) According to the legal basis amended by ministerial decree of 15 December 1997, Dutch Official Gazette (Staatscourant) No 241. The original notice stated that service stations located within 10 kilometres of the border would receive NLG 80 (EUR 36) per 1000 litres of light oil supplied and those located between 10 and 20 kilometres from the border would receive NLG 40 (EUR 18) per 1000 litres of light oil supplied. The original decree did not provide for the amount of the aid to be doubled.

(5) Article 5 of the temporary aid scheme for service stations near the German border of 21 July 1997, amended by ministerial decree of 15 December 1997.

(6) In accordance with the irrevocably fixed exchange rate between the euro and the currencies of the Member States, which entered into force on 1 January 1999.

(7) The notification by the Dutch authorities does not tally with the temporary aid scheme for service stations near the German border. Point 6 of the notification states that the subsidy for the total maximum duration of the aid measure (until 30 June 2000) amounts to EUR 100000 per service station, whereas Article 4 of the temporary aid scheme, as published in Dutch Official Gazette (Staatscourant) No 138 of 23 July 1997, states that the subsidy per applicant may not exceed the NLG equivalent of EUR 100000 for the period from 1 July 1997 to 30 June 2000.

(8) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ L 173, 30.6.1983, p. 5).

(9) Agreements between the Ministry of Finance and Senter on implementing the temporary aid scheme for service stations near the German border of 17 June 1998 (ref. ZTD850161.MIM).

(10) The Dutch authorities originally notified aid for 624 service stations. However, the list of recipients provided by the Dutch authorities comprised 633 service stations. This decision therefore concerns 633 and not 624 service stations.

(11) See point 19.

(12) See footnote 9.

(13) See footnote 4.

(14) See footnote 7.

(15) See point 30.

(16) See points 83 to 86.

(17) See footnote 4.

(18) The numbering is the same as that indicated by the Dutch Government.

(19) OJ C 68, 6.3.1996, p. 9.

(20) See footnote 19.

(21) See point 21.

(22) See point 39.

(23) The Commission does not take the view (Press release IP/86/631 of 19 December 1986) that a discount scheme operated to support the margins of dealers that have to reduce their pump prices in order to compete on their local market involves indirect resale price maintenance.

(24) See points 84 and 85.

ANNEX

List of applicants under the temporary aid scheme for service stations near the German border. The numbers tally with the list of applicants given in the letter from the Dutch Government dated 7 April 1999

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