Opinion of the Advocate General — ECLI:EU:C:2004:124
Date: 2004-03-04
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. State aid – Planned aid – Prohibition on implementation before the Commission’s final decision – Direct effect – Persons who may rely on an infringement – Individual subject to a tax which is an integral part of an aid measure (EC Treaty, Art. 93(3) (now Art. 88(3), EC)) 2. State aid – Provisions of the Treaty – Scope – Taxes coupled with exemptions regarded as aid – Included – Condition – Hypothecation (EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93 (now Art. 88 EC)) 1. An individual may have an interest in relying before the national court on the direct effect of the prohibition on implementation referred to in the last sentence of Article 93(3) of the Treaty (now, Article 88(3) EC), not only in order to erase the negative effects of the distortion of competition created by the grant of unlawful aid, but also in order to obtain a refund of a tax levied in breach of that provision. In the latter case, the question whether an individual has been affected by the distortion of competition arising from the aid measure is irrelevant to the assessment of his interest in bringing proceedings. The only fact to be taken into consideration is that the individual is subject to a tax which is an integral part of a measure implemented in breach of the prohibition referred to in the last sentence of Article 93(3) of the Treaty. (see para. 19) 2. Taxes do not fall within the scope of the provisions of the Treaty concerning State aid unless they constitute the method of financing an aid measure, so that they form 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 sense that the revenue from the tax is necessarily allocated for the financing of the aid. In the event of such hypothecation, the revenue from the tax has a direct impact on the amount of the aid and, consequently, on the assessment of its compatibility with the common market. 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, offset by an increase in the tax is not in itself sufficient to amount to such hypothecation. (see paras 25-26, 29, operative part)