# C_2006281EN.01001201.xml

| 18.11.2006 | EN | Official Journal of the European Union | C 281/12 |
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18.11.2006

EN

Official Journal of the European Union

C 281/12

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Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour de cassation — France) — Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS),

(Case C-526/04) (1)

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(State aid - Articles 87 and 88(3) CE - Tax on direct sales of medicines - Applicable to pharmaceutical laboratories rather than wholesale distributors - Prohibition on implementing a non-notified aid measure - Possibility of pleading that an aid measure is unlawful in order to obtain reimbursement of a charge - Compensation for discharging public service obligations imposed on wholesale distributors - Burden of proof in relation to overcompensation - Detailed rules laid down by national law - Prohibition on making reimbursement of a charge practically impossible or excessively difficult)

(2006/C 281/18)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Laboratoires Boiron SA

Applicant:

Defendant: Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS)

Defendant:

Re:

Reference for a preliminary ruling — Cour de Cassation — Interpretation of Articles 86 and 87 — Classification as State aid of the absence of liability to a tax on wholesale sales of proprietary medicinal products by wholesalers subject to certain public service obligations in relation to their range, stocks and delivery times of products (wholesale distributors)

Operative part of the judgment

| 1. | Community law must be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that provided for by Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid in order to obtain reimbursement of the part of the sums paid which corresponds to the economic advantage unfairly obtained by wholesale distributors. |
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1.

Community law must be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that provided for by Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid in order to obtain reimbursement of the part of the sums paid which corresponds to the economic advantage unfairly obtained by wholesale distributors.

| 2. | Community law does not preclude the application of rules of national law which make reimbursement of a mandatory contribution such as that provided for in Article 12 of Law No 97-1164 subject to proof by the claimant seeking reimbursement that the advantage derived by wholesale distributors from their not being liable to pay that contribution exceeds the costs which they bear in discharging the public service obligations imposed on them by the national rules and, in particular, that at least one of the conditions laid down in the judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 is not satisfied.
  However, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document. |
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2.

Community law does not preclude the application of rules of national law which make reimbursement of a mandatory contribution such as that provided for in Article 12 of Law No 97-1164 subject to proof by the claimant seeking reimbursement that the advantage derived by wholesale distributors from their not being liable to pay that contribution exceeds the costs which they bear in discharging the public service obligations imposed on them by the national rules and, in particular, that at least one of the conditions laid down in the judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 is not satisfied.

Altmark Trans and Regierungspräsidium Magdeburg

However, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document.

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(1)  OJ C 69, 19.03.2005.

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