Case C-175/02

F.J. Pape

v

Minister van Landbouw, Natuurbeheer en Visserij

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

(State aid – Article 93(3) of the EC Treaty (now Article 88(3) EC) – Planned aid – Prohibition on the implementation of planned measures before the Commission’s final decision – Tax partly earmarked for financing the aid measure – Tax imposed before approval of the aid)

Opinion of Advocate General Geelhoed delivered on 4 March 2004

Judgment of the Court (First Chamber), 13 January 2005

Summary of the Judgment

State aid – Provisions of the Treaty – Scope – Taxes partly earmarked for financing an aid measure – Included – Condition – Binding hypothecation between the tax and the aid

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

Taxes do not fall within the scope of the Treaty provisions on State aid unless they constitute the means of financing an aid measure and are thus an integral part of that measure.

For a tax, or part of a tax, to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules. In the event of such hypothecation, the revenue from the tax has a direct impact on the intensity of the aid and, consequently, also on the assessment of whether the aid is compatible with the common market.

(see paras 14-15)

JUDGMENT OF THE COURT (First Chamber) 13 January 2005 (1)

(State aid – Article 93(3) of the EC Treaty (now Article 88(3) EC) – Planned aid – Prohibition on the implementation of planned measures before the Commission's final decision – Tax partly earmarked for financing the aid measure – Tax imposed before approval of the aid)

In Case C-175/02, REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 8 March 2002, received at the Court on 13 May 2002, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 4 March 2004,

gives the following

‘The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 92, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.’

On those grounds, the Court (First Chamber) rules as follows:

[Signatures]