Case C-345/02

Pearle BV and Others

v

Hoofdbedrijfschap Ambachten

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(State aid – Concept of aid – Collective advertising campaigns in favour of one sector of the economy – Financing by means of a special contribution payable by undertakings in that sector – Action taken by a body governed by public law)

Summary of the Judgment

1. State aid – Planned aid – Notification of the Commission – Extent of the obligation – Notification required to include the method of financing because of its effect on the admissibility of the aid

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

2. State aid – Planned aid – Grant of aid in contravention of the prohibition laid down by Article 93(3) of the Treaty (now Article 88(3) EC) – Duty of the national courts to uphold the rights of the persons concerned – Competence to interpret the concept of aid

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

3. State aid – Concept – Bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign through resources levied on its members and compulsorily earmarked for that campaign – Excluded

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

1. Where the method by which State aid is financed, particularly by means of compulsory contributions, forms an integral part of the aid measure, consideration of the latter by the Commission must necessarily also take into account that method of financing the aid. In such a case, the notification of the aid provided for in Article 93(3) of the Treaty (now Article 88(3) EC) must also cover the method of financing, so that the Commission may consider it on the basis of all the facts. If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible when, if the Commission had been aware of its method of financing, it could not have been so declared.

(see paras 29-30)

2. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the obligations imposed on the Member States by Article 93(3) of the Treaty (now Article 88(3) EC). In order to determine whether a State measure has been introduced contrary to that provision, a national court may have cause to interpret the concept of aid contained in Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC).

(see para. 31)

3. On a proper construction of Articles 92(1) and 93(3) of the Treaty (now Article 88(3) EC), bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign organised for the benefit of its members and decided on by them, through resources levied from those members and compulsorily earmarked for the funding of that campaign, do not constitute an integral part of an aid measure within the meaning of those provisions and it was not necessary for prior notification of them to be given to the Commission since it has been established that that funding was carried out by means of resources which that trade association, governed by public law, never had the power to dispose of freely.

(see para. 41, operative part)

JUDGMENT OF THE COURT (First Chamber) 15 July 2004 (1)

(State aid – Definition of aid – Collective advertising campaigns in favour of one sector of the economy – Financing by means of a special contribution payable by undertakings in that sector – Action taken by a body governed by public law)

In Case C-345/02,

REFERENCE to the Court of Justice under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings before that court between

and

on the interpretation of Articles 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) and 93(3) of the EC Treaty (now Article 88(3) EC),

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the oral observations of the Netherlands Government, represented by H.G. Sevenster, acting as Agent, and of the Commission, represented by H. van Vliet, at the hearing on 29 January 2004,

after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,

gives the following

‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’

‘(1)

(2)

…

(3)

The Netherlands law on the organisation of business

The Netherlands law on administrative proceedings concerning the organisation of business

‘1.

2.

3.

4.

5.Observations submitted to the Court of Justice

The Court’s reply

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Hoge Raad der Nederlanden by judgment of 27 September 2002, hereby rules:

Jann

Rosas

von Bahr

Silva de Lapuerta

Lenaerts

Delivered in open court in Luxembourg on 15 July 2004.

R. Grass

P. Jann

Registrar

President of the First Chamber