# C_2005057EN.01000302.xml

| 5.3.2005 | EN | Official Journal of the European Union | C 57/3 |
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5.3.2005

EN

Official Journal of the European Union

C 57/3

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-174/02 (reference for a preliminary ruling by the Hoge Raad der Nederlanden): Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën (1)

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(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 - Scope of the prohibition if the aid consists of an exemption from a tax - Persons who may rely on an infringement)

(2005/C 57/05)

Language of the case: Dutch

In Case C-174/02: reference to the Court 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 between Streekgewest Westelijk Noord-Brabant and Staatssecretaris van Financiën – the Court (First Chamber) composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General, M.-F. Contet, Principal Administrator, gave a judgment on 13 January 2005, in which it ruled:

| 1. | The last sentence of Article 93(3) of the EC Treaty (now the last sentence of Article 88(3) EC) must be interpreted as meaning that it may be relied on by a person liable to a tax forming an integral part of an aid measure levied in breach of the prohibition on implementation referred to in that provision, whether or not the person is affected by the distortion of competition resulting from that aid measure. |
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1.

The last sentence of Article 93(3) of the EC Treaty (now the last sentence of Article 88(3) EC) must be interpreted as meaning that it may be relied on by a person liable to a tax forming an integral part of an aid measure levied in breach of the prohibition on implementation referred to in that provision, whether or not the person is affected by the distortion of competition resulting from that aid measure.

| 2. | The last sentence of Article 93(3) of the Treaty must be interpreted as meaning that the prohibition in it applies to a tax only if the revenue from it is hypothecated to the aid measure at issue. The fact that the aid is granted in the form of a tax exemption or that the loss of revenue due to that exemption is, for the purposes of the budget estimates of the Member State in question, offset by an increase in the tax are not in themselves sufficient to amount to such hypothecation. |
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2.

The last sentence of Article 93(3) of the Treaty must be interpreted as meaning that the prohibition in it applies to a tax only if the revenue from it is hypothecated to the aid measure at issue. The fact that the aid is granted in the form of a tax exemption or that the loss of revenue due to that exemption is, for the purposes of the budget estimates of the Member State in question, offset by an increase in the tax are not in themselves sufficient to amount to such hypothecation.

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(1)  OJ C 169 of 13.07.2002.

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