Judgment — ECLI:EU:T:1998:217
Date: 1998-09-16
Language of the case: Dutch
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: General;Applications by natural or legal persons;Limitation periods
Procedure: Action for annulment - inadmissible
Origin: Netherlands

summary form in the Official Journal of 24 March 1993 (see paragraphs 3 to 5 
above). That decision had never been challenged by the applicant. The letter from 
the applicant and VEWIN of 16 December 1994, in which both forwarded their 
complaint to the Commission, showed that, at the time the complaint was lodged, 
the applicant was aware of the Commission's letter of 3 December 1992. In the 
absence of publication or notification, it is for a party who has knowledge of a 
decision concerning it, as, for example, in this case through publication of the 
essential elements of the decision in the Official Journal, to request the whole text 
thereof within a reasonable period (Joined Cases T-432/93, T-433/93 and T-434/93 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
Socurte and Others ν Commission [1995] ECR 11-503, paragraph 49). The Com­
mission had, moreover, circulated a press release on 25 November 1992 concerning 
the 1992 decision, which was also cited in its annual report on competition. It was 
also apparent from the applicant's letter to the Netherlands Ministry of Foreign 
Affairs of 23 November 1994 that at that time it already had a copy of the Com­
mission's letter of 3 December 1992. 
89 Regarding the decision of 29 March 1994, communicated to the Netherlands Gov­
ernment by letter of 13 April 1994 (see paragraph 7 above), the Commission 
observes that the amendment made to the WBM appeared in the Official Journal of 
4 June 1994 and that the applicant clearly had a copy of the letter of 13 April 1994, 
since it was annexed to the written observations on the objection of inadmis­
sibility. 
90 Therefore, the Commission submits, the present action is inadmissible, the appli­
cant having failed to bring an action for annulment in time against the decisions of 
25 November 1992 and 29 March 1994, of which it had been able to take cogni­
sance when they were published in the Official Journal (Case C-188/92 TWD 
Textilwerke Deggendorf ν Germany [1994] ECR 1-833). 
91 The Commission and the Netherlands Government also dispute the assertion that 
the contested decision arises from a new overall assessment of the WBM. It was 
not therefore in substitution for the previous decision of 25 November 1992. The 
Commission maintains that, in accordance with the judgment in Joined Cases 
91/83 and 127/83 Heineken Brouwerijen ν Inspecteurs der Vennootschapsbelasting 
[1984] ECR 3435, at paragraph 21, no new assessment of the tax exemptions 
already approved and entirely distinct from the tax exemptions notified on 27 
October 1994 was necessary following that latter notification. 
92 The Commission adds that, even if the Member State in question does not imple­
ment the approved measures immediately, the principle of legal certainty implies 
that a decision becomes immune from challenge as from the expiry of the two-
month period referred to in Article 173 of the Treaty, so that, on the one hand, the 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
Member State concerned may be certain that it may introduce the measure envis­
aged, and, on the other, the Commission may close the file. 
93 As for the applicant's argument that the notification of the draft WBM by the 
Netherlands Government on 7 August 1992 did not relate to the planned introduc­
tion of an aid scheme, because the Netherlands Parliament had not yet accepted 
the draft Law, the Commission and the Kingdom of the Netherlands argue that 
Article 93(3) of the Treaty, which requires notification of 'any plans to grant or 
alter aid', does not mean that only definitive aid measures may be validly notified. 
They submit, moreover, that it is clear from the case-law that a Member State may 
decide to alter a draft measure that has already been notified (Heineken Brouwer­
ijen, cited above). 
94 Finally, the Kingdom of the Netherlands points out that reasons were stated for 
the decision of 25 November 1992, so that the applicant cannot claim that it was 
non-existent in the absence of a statement of reasons. 
95 The applicant considers that its action is not inadmissible solely because it did not 
take legal action against the approval decisions prior to the contested decision. In 
this case, only a draft Law adopted by the Netherlands Parliament would consti­
tute an aid 'plan' within the meaning of Article 93(3) of the Treaty, which the 
Crown would then bring into force by a Royal Decree, after approval by the 
Commission. In the applicant's submission, it is for the Netherlands Parliament to 
adopt the final text of a law, so that all previous notifications by the Netherlands 
Government were irrelevant. Thus only the Netherlands Parliament's draft of 
December 1994 constituted an aid 'plan' within the meaning of Article 93(3) of the 
Treaty. Therefore, since the previous notifications to the Commission could not 
relate to 'plans' within the meaning of Article 93(3) of the Treaty, it would have 
been premature for the applicant to react, had it been aware of those notifications. 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
96 Moreover, the contested decision constituted an overall assessment of all the types 
of aid contained in the WBM, so that the previous approvals were re-evaluated in 
the light of new amendments. The applicant states that it expressly called upon the 
Commission to carry out an overall assessment of the WBM, since, under the case-
law, where an aid plan is amended before it is finally adopted, the prohibition on 
putting it into effect contained in Article 93(3) of the Treaty, and likewise the 
Commission's assessment, concern the whole aid scheme including the amend­
ments and not the amendments separately (see Heineken Brouwerijen, cited 
above). An overall assessment of all the aid measures in the WBM was all the more 
necessary since the amendments made to previous plans were numerous and had 
an influence on aid measures already authorised, and since the Commission had in 
the meantime changed its parameters by adopting the Community guidelines on 
State aid for environmental protection (OJ 1994 C 72, p. 3). The applicant submits, 
moreover, that the contested decision shows that the Commission did in fact carry 
out an overall assessment of the aid measures in question (p. 8, second, third and 
last paragraphs, and p. 9, fifth and last paragraphs). The Commission there stated 
explicitly that it saw no reason to reconsider its position in relation to previous 
drafts and referred to the WBM and not to the amendments thereto. In addition, 
after having been informed by the applicant that the notified text of the WBM did 
not correspond to the text finally adopted, the Commission requested the Neth­
erlands Government by letter of 25 January 1995 to send it the final texts of the 
WBM. Finally, the Netherlands Parliament approved the draft WBM in its entirety 
and did not merely ratify amendments proposed by the Netherlands Government. 
97 The applicant argues that the Netherlands Government was obliged, by virtue of 
the scheme of Article 93 of the Treaty and of Article 5, imposing a duty to con­
tribute in good faith to the achievement of the objectives of the Treaty, to notify 
only the final version of the WBM. The Netherlands Government had, however, 
taken the approach of submitting to the Commission a series of provisional drafts. 
It was only through the complaint by VEWIN and the applicant that the Com­
mission was informed of the exact text of the WBM, which led it on 25 January 
1995 to ask the Netherlands Government to send it 'the full texts of the WBM'. 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
98 In its reply, the applicant also refers to the case of Socurte and Others ν Commis­
sion, cited above. It states that it was never aware of any reasoning whatsoever to 
justify the authorisation of the previous versions of the draft WBM. It adds that 
when, at the end of 1994, it learned of the existence of previous notifications, it 
immediately contacted the Commission and set out in detail in a complaint why it 
considered that the authorisation already granted could in no way be justified. 
99 Moreover, the previous approval decisions were not supported by any reasoning at 
all. The applicant was not therefore in a position to verify their legality or to 
decide whether it wished to bring an action for annulment against them. It was 
impossible on the strength of the publications in the Official Journal concerning 
the previous notifications (OJ 1993 C 83, p. 3, and OJ 1994 C 153, p. 20) to iden­
tify either the beneficiaries of the aid notified or the grounds justifying the Com­
mission's decisions not to raise objections to the aid in question. The Commission 
could not therefore expect the applicant to bring an action against those decisions, 
of which it knew neither the details nor the reasoning. A different interpretation 
would lead to a situation in which the Commission drew advantage from its own 
infringement of Article 190 of the Treaty, the aim of which is, in particular, to pro­
tect the rights of third parties. In any event, as a result of the failure to provide 
reasoning, the applicant submits, those decisions have to be regarded an non­
existent or absolutely void. 
Findings of the Court 
100 The plea of inadmissibility raised by the Commission and the Netherlands Gov­
ernment is in two parts; alleging first that, at the time this action was brought, the 
time-limits for an annulment action in respect of the decisions of 25 November 
1992 and 29 March 1994 had already expired, and, secondly, that the contested 
decision is purely confirmatory of those two decisions. 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
101 Before examining the parties' arguments, it is necessary to recapitulate the chro­
nology of the decisions which the Commission adopted concerning the various aid 
elements in the WBM. 
102 By letter of 3 December 1992, the Commission informed the Netherlands Govern­
ment that, on 25 November 1992, it had taken Decision SG(92) D/17278 not to 
raise any objection to the aid measures contained in the draft WBM and notified to 
it on 7 August 1992. The draft WBM to which the decision of 25 November 1992 
related already provided for the relief for self-supplying undertakings, namely a 
total exemption for such undertakings with an extraction capacity not exceeding 10 
m 3 per hour (Article 8(a)) and a preferential rate for such undertakings which 
exceeded that threshold, which was then fixed at H F L 0.125 per m 3 (Article 9(b)). 
The same draft also provided for the exemption for irrigation or watering purposes 
(Article 8(e)). 
103 By letter of 6 December 1993, the Netherlands Government notified the Commis­
sion under Article 93(3) of the Treaty of a proposal to amend the WBM. The pro­
posed amendments concerned, in particular, the rate of the tax on groundwater, 
which was then fixed at H F L 0.34 for water distribution companies and H F L 0.17 
for self-supply undertakings (Article 9). By letter of 13 April 1994, the Commis­
sion informed the Netherlands Government of its decision of 29 March 1994 not 
to raise any objection to the amendments notified to it. 
104 Finally, by letter of 27 October 1994, the Netherlands Government notified the 
Commission under Article 93(3) of the Treaty of its proposal to 'amend the WBM 
by introducing one further adjustment on a permanent basis and two on a tempo­
rary basis'. That notification of 27 October 1994 gave rise to the adoption of the 
contested decision. The amended WBM provided for an increase in the tax on 
waste from H F L 28.50 to H F L 29.20 per thousand kilos (Article 18). It also pro­
vided for the introduction of certain reliefs from the tax on groundwater and the 
tax on waste, namely the exemption for rinsing water (Articles 8(h) and 10a), the 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
exemption for de-inking residues (Article 18a(l)) and the exemption for waste 
from the recycling of plastic materials (Article 18a(2)). 
— The expiry of the time-limits for bringing annulment actions against the deci­
sions of 25 November 1992 and 29 March 1994 
105 The chronological summary of the facts given above shows that the two aid ele­
ments of the WBM in relation to which the applicant has the status of a party 
concerned within the meaning of Article 93(2) of the Treaty, namely the relief for 
self-supplying undertakings and the exemption for irrigation or watering purposes, 
were already declared compatible with the common market in the Commission 
decision of 25 November 1992. In addition, an amendment in the preferential rate 
of the tax on groundwater for self-supplying undertakings was declared compat­
ible with the common market by the decision of 29 March 1994. The rate in ques­
tion is that of HFL 0.17 per m3 (Article 9) which also appears in the definitive ver­
sion of the Law which entered into force on 1 January 1995. 
106 It is clear that the notification of 27 October 1994, which gave rise to the adoption 
of the contested decision, did not in any way alter the two aid elements in the 
WBM in relation to which the applicant has the status of a person concerned 
within the meaning of Article 93(2) of the Treaty. 
107 However, as the applicant rightly points out, the Commission made a finding in 
the contested decision as to the compatibility of all the aid measures contained in 
the WBM with the common market, and not just of the amendments notified on 
27 October 1994. It concluded (at p. 9, seventh paragraph, of the contested deci­
sion) that 'the aid measures in the WBM ... may be regarded as compatible with 
the common market by reason of Article 92(3)(c) of the EC Treaty and Article 
61(3)(c) of the EEA Agreement, since they comply with Paragraph 3.4 of the 
Community guidelines on State aid for environmental protection'. 
108 Before examining whether the contested decision is purely confirmatory of the 
decisions of 25 November 1992 and 29 March 1994, in so far as it declares the 
relief for self-supplying undertakings and the exemption for irrigation or watering 
purposes to be compatible with the common market, it is necessary to ascertain 
whether the decisions of 25 November 1992 and 29 March 1994 had become final 
in relation to the applicant at the time this action was brought. The case-law to the 
II - 3746 
WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
effect that a decision that is purely confirmatory of an earlier decision is not a mea­
sure open to legal challenge is based on the concern that the time-limits for bring­
ing an action should not be allowed to recommence once they have expired (Case 
26/76 Metro ν Commission [1977] ECR 1875, paragraph 4; Joined Cases 166/86 
and 220/86 Irish Cement ν Commission [1988] ECR 6473, paragraph 16; Case 
C-480/93 Ρ Zunis Holding and Others ν Commission [1996] ECR I-1, paragraph 
14; Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services ν 
Commission [1997] ECR II-1355, paragraph 48; Case T-224/95 Tremblay and Oth­
ers ν Commission [1997] ECR II-2215, paragraph 49; and Case T-235/95 Goldstein 
ν Commission [1998] ECR 11-523, paragraph 41). On that basis, an action against a 
confirmatory decision is inadmissible only if the decision confirmed has become 
final in relation to the person concerned through not having been challenged 
before the Court within the required period. Where the confirmed decision has 
not become final, the person concerned is entitled to challenge the original deci­
sion, the confirmatory decision or both (Joined Cases 193/87 and 194/87 Mauris-
sen and Union Syndicale ν Court of Auditors [1989] ECR 1045, paragraph 26; Case 
T-64/92 Chavane de Dalmassy and Others ν Commission [1994] ECR-SC II-723, 
paragraph 25). 
109 If, therefore, the respective periods within which actions could have been brought 
under Article 173 of the Treaty for annulment of the decisions of 25 November 
1992 and 29 March 1994 had not yet expired at the time the present action was 
brought, the action should be declared admissible, notwithstanding the possibility 
that the contested decision may be purely confirmatory inasmuch as it declares the 
relief for self-supplying undertakings and the exemption for irrigation or watering 
purposes compatible with the common market. 
1 1 0 Under the fifth paragraph of Article 173 of the Treaty, annulment actions must be 
brought within two months of the publication of the measure, its notification to 
the applicant, or, in the absence thereof, the day on which it came to the knowl-
II - 3747 
JUDGMENT OF 16. 9. 1998 — CASE T- 188/95 
edge of the latter, as the case may be. That time-limit is to be extended on account 
of distance in some cases, pursuant to Article 102(2) of the Rules of Procedure of 
the Court of First Instance and Article 1 of Annex II to the Rules of Procedure of 
the Court of Justice. 
1 1 1 Although a decision declaring aid notified by a Member State to be compatible 
with the common market is notified only to its addressee, namely the Member 
State, and only a summary thereof is published in the Official Journal, a third party 
may not bring an annulment action against it at any time. The case-law shows that 
it is the responsibility of a person who becomes aware of the existence of a mea­
sure concerning him to request the full text within a reasonable period. Subject to 
that reservation, the two-month period referred to above does not start to run 
until the third party concerned has an exact knowledge of the content and grounds 
of the measure in question so as to be able to exercise his right of action (Socurte 
ν Commission, cited above, paragraph 49). 
112 In this case, the applicant's letter to the Netherlands Ministry of Foreign Affairs of 
23 November 1994 (Annex XVI to the rejoinder) shows that at that time the appli­
cant already had a copy of the letter of 3 December 1992 whereby the Commission 
notified the Netherlands authorities of its decision of 25 November 1992. In that 
letter, the applicant's lawyer states: ' I already have a copy of the Commission's let­
ter of 3 December 1992.'. Thus by 23 November 1994 at the latest, the applicant 
had an exact knowledge of the content and grounds of the measure in question, so 
that it was in a position to exercise its right of action. 
1 1 3 Therefore, at the time this action was brought on 9 October 1995, the two-month 
time-limit for bringing an action prescribed by the fifth paragraph of Article 173 of 
the Treaty, extended by six days on account of distance pursuant to Article 102(2) 
of the Rules of Procedure of the Court of First Instance and Article 1 of Annex II 
to the Rules of Procedure of the Court of Justice, had expired in relation to the 
decision of 25 November 1992. 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
114 Concerning the decision of 29 March 1994, the Court notes that the written sub­
missions prepared by the Netherlands Government on 8 February 1995 in the con­
text of its dispute with VEWIN and the applicant (Annex Β to the additional com­
plaint of 17 March 1995; Annex 5 to the application) refer to the Commission's 
letter of 13 April 1994 which notified the decision of 29 March 1994 to the Neth­
erlands Government and state that that decision is produced in Annex 8 to those 
written submissions (point 24). Questioned on that point at the hearing, the appli­
cant acknowledged that, by 8 February 1995 at the latest, it had an exact knowl­
edge of the actual wording of the decision of 29 March 1994. Therefore, at the time 
the present action was brought on 9 October 1995, the time-limit for bringing an 
annulment action, extended by six days on account of distance, had also expired in 
relation to the decision of 29 March 1994. 
1 1 5 The applicant's argument that the reasons for the decisions of 25 November 1992 
and 29 March 1994 were not stated, thus preventing it from being in a position to 
assess whether to bring an annulment action, must be rejected. If the applicant 
considered that the reasons for the decisions of 25 November 1992 and 29 March 
1994 were not sufficiently stated, it could, in an annulment action against those 
decisions, have raised a plea arguing lack or insufficiency of reasoning, any such 
lack or insufficiency not being a factor of such a kind as to prevent the time-limit 
for bringing an action from expiring. 
116 N o r can the applicant deduce from the alleged lack of reasoning that the decisions 
of 25 November 1992 and 29 March 1994 were non-existent, since a lack of rea­
soning does not in itself lead to a finding of non-existence. A measure may con­
ceivably be regarded as legally non-existent only if it is tainted by an irregularity 
whose gravity is so obvious that it cannot be tolerated by the Community legal 
order (Case C-137/92 Ρ Commission ν BASF and Others [1994] ECR 1-2555, para­
graphs 49 and 50), something which clearly does not apply to the facts of this case. 
117 The applicant also argues that only the Netherlands Parliament's draft of Decem­
ber 1994 constituted an aid ‘plan' within the meaning of Article 93(3) of the Treaty. 
It would thus have been premature for it to take action against the decisions of 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
25 November 1992 and 29 March 1994, since they did not yet concern aid 'plans' 
within the meaning of that provision. 
1 1 8 That argument must also be rejected. Article 93(3) of the Treaty requires notifica­
tion of 'any plans to grant or alter aid'. The aid measures must therefore be noti­
fied to the Commission while they are still at the draft stage, that is to say before 
they are implemented and while they are still capable of being adjusted in the light 
of any observations the Commission may have. Since Article 93(3) of the Treaty 
does not contain any formal criterion, it is for each Member State to determine at 
what stage of the legislative procedure it decides to submit the aid plan for exami­
nation by the Commission, provided always that the plan is not implemented 
before the Commission has declared the aid compatible with the common market. 
119 The notifications made by the Netherlands authorities on 7 August 1992 and 6 
December 1993 related respectively to aids and to an amendment to aid contained 
in a draft Law presented to the Netherlands Parliament. They therefore concerned 
'plans to grant or alter aid' within the meaning of Article 93(3) of the Treaty. The 
approach taken by the Netherlands authorities, namely notification of a draft Law 
containing aid plans before its formal adoption by the national Parliament, dem­
onstrated scrupulous compliance with the obligations imposed on Member States 
by Article 93 of the Treaty, since it allowed amendment of the aid elements in the 
draft, in the light of any observations the Commission might make, in the course 
of the legislative procedure itself. 
120 It follows from all the above considerations that the decisions of 25 November 
1992 and 29 March 1994 had become immune from challenge at the time the 
present action was brought. The action should therefore be declared inadmissible if 
it appears that the contested decision is purely confirmatory of the decisions of 25 
November 1992 and 29 March 1994 in so far as it declares the relief for self-
supplying undertakings and the exemption for irrigation or watering purposes 
compatible with the common market. 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
— Whether the contested decision was purely confirmatory 
121 In the contested decision (p. 9, seventh paragraph), the Commission declared 'the 
aid measures in the WBM' compatible with the common market. That declaration 
of compatibility is thus not limited to the amendments made to the WBM and 
notified to the Commission on 27 October 1994. The question therefore arises as 
to whether the contested decision, in so far as it declares the aid already approved 
in the decisions of 25 November 1992 and 29 March 1994 to be compatible with 
the common market, is purely confirmatory of those decisions, in which case it is 
not a measure open to legal challenge (see the case-law cited in paragraph 108 
above), such a decision not giving those concerned the opportunity of reopening 
the question of the legality of the measure which is confirmed (Joined Cases 42/59 
and 49/59 Snupat ν High Authority [1961] ECR 103; Tremblay and Others, cited 
above, paragraph 49). 
122 O n that point, the contested decision shows that the Commission only carried out 
an examination of the aid elements notified on 27 October 1994, namely the 
exemptions for rinsing water, de-inking residues and waste from the recycling of 
plastic materials. Thus the Commission first refers to the fact (p. 1, second para­
graph, of the decision) that 'on 25 November 1992 it had approved the original 
version of the draft law on which the exceptions were based'. Subsequently (pp. 4 
to 6 of the decision), it confines itself to describing the three exemptions notified 
and then, in its legal assessment (pp. 6 to 10), it examines the compatibility of 
those aid measures with the common market. 
123 It is true that the Commission states (p. 9, fifth paragraph, of the contested deci­
sion) in relation to the aid already approved on 25 November 1992, particularly 
the relief for self-supplying undertakings (as amended by the decision of 29 March 
1994) and the exemption for irrigation or watering purposes, that it 'does not con­
sider it necessary to review its decision of 1992 given that the arguments cited in 
the previous paragraphs [of the contested decision] also apply to the Law in its 
original version'. 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
124 However, that passage, placed in its context, cannot be regarded as proof that the 
aid already approved by the decisions of 25 November 1992 and 29 March 1994 
was the subject of a fresh examination in the contested decision. 
125 It must be seen as a reply to the complaints of the applicant and VEWIN of 16 
December 1994 and 17 March 1995, in which the complainants requested that the 
procedure under Article 93(2) of the Treaty be opened in respect of all the aid ele­
ments in the WBM, stressing: 'This is after all a global measure [...] in which all the 
taxes, exemptions and reliefs constitute an inextricable whole.' (additional com­
plaint of 17 March 1995, point 8.4). It does not imply that, in the contested deci­
sion, the Commission carried out a fresh examination of the aid which had been 
the subject-matter of the decisions of 25 November 1992 and 29 March 1994, but 
must be interpreted as meaning that the reasons which led the Commission to 
declare the aid in question compatible with the common market in the decisions of 
25 November 1992 and 29 March 1994 remain unchanged in the contested deci­
sion. 
126 The fact that the contested decision contains a reply to a request formulated in the 
applicant's complaint has no relevance to the admissibility or otherwise of the 
present action. 
127 It should be recalled in that respect that decisions adopted by the Commission in 
the area of State aid are addressed to the Member States concerned, even where 
they concern State measures to which objection is taken in complaints on the 
ground that they constitute State aid contrary to the Treaty and the Commission 
refuses to initiate the procedure under Article 93(2) because it considers that the 
measures complained of are compatible with the common market (Commission ν 
Sytraval and Brink's France, cited above, paragraph 45). 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
128 Where, as in this case, the Commission replies, when examining new aid, to an 
argument or a request put forward by a complainant in respect of different aid 
already approved, that circumstance does not in itself demonstrate that the latter 
has been the subject of a fresh examination by the Commission. To hold otherwise 
would amount to accepting that, simply by lodging a complaint against aid mea­
sures already approved, an undertaking might extend the time-limit for bringing an 
action for annulment of the approval decision, in cases where the time-limit had 
not yet expired, or reopen it in cases where the approval decision had become 
immune from challenge at the time the complaint was lodged, whereas the time-
limit prescribed for bringing actions under Article 173 of the Treaty is a matter of 
public policy {Mutual Aid Administration Services ν Commission, cited above, 
paragraph 38). 
129 Moreover, the Commission was not required to re-examine in the contested deci­
sion the relief for self-supplying undertakings and the exemption for irrigation or 
watering purposes which had already been approved, since the amendments made 
to the WBM and notified to the Commission on 27 October 1994 constituted 
separate aid measures which were not capable of influencing the assessment which 
the Commission had made of the initial draft of the WBM in its decisions of 25 
November 1992 and 29 March 1994 {Heineken Brouwerijen ν Inspecteurs der Ven­
nootschapsbelasting, cited above, paragraph 21). 
1 3 0 Furthermore, the applicant acknowledged at the hearing, in reply to a question 
from the Court, that two of the three aid measures notified on 27 October 1994, 
namely the exemptions for de-inking residues and waste from the recycling of 
plastic materials, were not in any way linked to the aid approved by the decisions 
of 25 November 1992 and 29 March 1994. 
1 3 1 It cannot reasonably be maintained that the exemptions for de-inking residues and 
for waste from the recycling of plastic materials, which concern the waste tax and 
are addressed to a group of specific potential beneficiaries, namely the paper and 
cardboard and plastics recycling industries, could have had an impact on the relief 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
for self-supplying undertakings and the exemption for irrigation or watering pur­
poses, which concern the groundwater tax and promote self-extraction of water. 
132 Thus, bearing in mind the distinction between the exemptions concerning the 
waste tax and those concerning the groundwater tax, it is not possible that the 
exemptions for de-inking residues and waste from the recycling of plastic materi­
als, notified to the Commission on 27 October 1994, could have been capable of 
influencing the assessment which the Commission had already made in its deci­
sions of 25 November 1992 and 29 March 1994 on the relief for self-supplying 
undertakings and the exemption for irrigation or watering purposes. 
133 The applicant maintains nevertheless that the third aid element notified on 27 
October 1994, namely the exemption for rinsing water, was such as to have an 
impact on the assessment of the relief for self-supplying undertakings. It explains 
that the undertakings benefiting from the exemption for rinsing water are often 
self-supplying undertakings which already enjoy relief from the tax on ground­
water, thus aggravating the effects of the relief for self-supp lying undertakings. 
134 That argument must be rejected. The aid enjoyed by self-supplying undertakings, 
which was approved by the decisions of 25 November 1992 and 29 March 1994, is 
in no way affected by the exemption for rinsing water, since that exemption applies 
to any groundwater which is used for rinsing reusable containers, whether sup­
plied by a water distribution undertaking or self-extracted (see paragraph 83 
above). In those circumstances, the exemption for rinsing water cannot have any 
impact on the effects of the relief for self-supplying undertakings and the exemp­
tion for irrigation or watering purposes, approved by the decisions of 25 Novem­
ber 1992 and 29 March 1994. 
II - 3754 
WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
135 Moreover, the fact that on 23 December 1994 the Netherlands Parliament adopted 
the WBM in its entirety and not just the amendments notified to the Commission 
on 27 October 1994 does not demonstrate that, following that notification, the 
Commission re-examined the aid elements which it had already declared compat­
ible with the common market. 
136 N o r can the applicant derive any argument from the fact that, by letter of 25 Janu­
ary 1995, the Commission requested the Netherlands Government to send it the 
final texts of the WBM. The sending to the Commission of the full text of the 
WBM, as adopted by the Netherlands Parliament on 23 December 1994, could 
only have reassured the Commission that the aid elements of the WBM notified on 
27 October 1994, were distinct from the aid elements already approved on 25 
November 1992 and 29 March 1994. 
137 Moreover, that distinction between the various aid measures submitted for the 
Commission's assessment entails the rejection of any line of argument based on the 
Netherlands authorities' alleged practice of submitting a series of provisional drafts 
to the Commission. 
138 N o r can the applicant rely on the fact that, before adopting the contested decision, 
the Commission amended its framework for assessment by adopting the Commu­
nity guidelines on State aid for environmental protection, cited above. Those 
guidelines expressly provide (paragraph 4.2) that they 'are without prejudice to 
schemes that have already been authorised when the guidelines are published'. 
Under the applicant's argument, the Commission would have been required to 
re-examine, at the time of the adoption of its decision of 29 March 1994 and not at 
the time of the adoption of the contested decision, the aid already approved in its 
decision of 25 November 1992. That decision of 29 March 1994, which declares 
amendments to the aid approved on 25 November 1992 to be compatible with the 
common market, is subsequent to the publication of the Community guidelines in 
the Official Journal, which occurred on 10 March 1994. However, the decision of 
29 March 1994 has become immune from challenge (see paragraph 114 above). 
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JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
139 Furthermore, as the aid notified on 27 October 1994 is distinct from that already 
approved on 25 November 1992 and 29 March 1994, the Commission would have 
infringed the principles of legal certainty and the protection of legitimate expecta­
tion had it subjected the aid already approved to a fresh examination in the con­
tested decision. It should be emphasised here that, at the time the contested deci­
sion was adopted, the aid contained in the WBM had already been implemented by 
the Netherlands authorities. Even if those authorities had implemented all the cat­
egories of aid contained in the WBM, including the aid notified on 27 October 
1994 but not yet approved, the prohibition on putting the measures into effect 
contained in the final sentence of Article 93(3) of the Treaty would still not have 
applied to the relief for self-supplying undertakings and the exemption for irriga­
tion or watering purposes, since those were separate aid measures which had been 
subject to an earlier assessment {Heineken Brouwerijen ν Inspecteurs der Vennoot-
schapsbelasting, cited above, paragraph 22). 
140 Thus, at the time the contested decision was adopted, the two aid elements in the 
WBM in respect of which the applicant has the status of a party concerned within 
the meaning of Article 93(2) of the Treaty had not only been declared compatible 
with the common market but had also been put into effect in accordance with the 
final sentence of Article 93(3) of the Treaty. In those circumstances, the Commis­
sion could only have carried out a re-examination of the relief for self-supplying 
undertakings and the exemption for irrigation or watering purposes under the pro­
cedure laid down in Article 93(1) of the Treaty in respect of existing aid. 
1 4 1 It follows from the above that the contested decision must be regarded as purely 
confirmatory of the decisions of 25 November 1992 and 29 March 1994, in so far 
as it declares the relief for self-supplying undertakings and the exemption for irri­
gation or watering purposes compatible with the common market. Since the time-
limits for bringing actions for annulment of the two confirmed decisions had 
already expired at the time the present action was brought, the action is inadmis­
sible in so far as it seeks to call into question the assessment which the Commis­
sion made of the two categories of aid already approved. 
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WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
C — The special circumstances invoked by the applicant in support of its contention 
that the action is admissible 
142 In its application, the applicant raises two further arguments in support of its con­
tention that this action is admissible, whether it is a party concerned within the 
meaning of Article 93(2) of the Treaty or not. 
143 First, it emphasises that it lodged a complaint with the Commission, then an addi­
tional complaint, which the contested decision mentioned. It considers that the 
action must be declared admissible in order to protect its procedural rights vis-
à-vis the Commission in its capacity as a complainant. The Commission is obliged, 
it argues, in the case of a 'preliminary procedure', where it is confronted with a 
complaint in which serious arguments as to the compatibility of an aid measure are 
set out, to carry out a detailed and impartial investigation of the matter and, where 
it intends to reject the complaint, first to give the complainant the possibility of 
taking a position in relation to the information it has collected and the conclusions 
it draws therefrom (Case C-269/90 Technische Universität München ν Hauptzol­
lamt München-Mitte [1991] ECR 1-5469; Case T-49/93 SIDE ν Commission [1995] 
ECR 11-2501; Case T-95/94 Sytraval and Brink's France ν Commission, cited 
above). 
144 In reality, the Court's case-law shows that the Commission is under no obligation 
to hear the complainants during the preliminary phase of examining aid instituted 
by Article 93(3) of the Treaty (Case C-367/95 Ρ Commission ν Sytraval and 
Brink's France, cited above, paragraph 59). To require the Commission, in the con­
text of the preliminary procedure envisaged in Article 93(3) of the Treaty, to 
engage in adversarial proceedings with the complainant could lead to discrepancies 
between the procedural system laid down by that provision and that laid down by 
Article 93(2) of the Treaty (same paragraph). 
II - 3757 
JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
145 The applicant's argument based on alleged infringement of its procedural rights 
during the 'preliminary procedure' must therefore be rejected. 
146 Secondly, the applicant maintains that, where aid is implemented by means of fiscal 
or parafiscal charges, persons and undertakings that are subject to such taxes or 
charges may oppose their levying or apply for their repayment before the national 
courts (Case C-354/90 Féderation Nationale du Commerce Extérieur des Produits 
Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon 
ν France [1991] ECR 1-5505, paragraph 12 et seq.; Joined Cases C-78/90 to 
C-83/90 Compagnie Commerciale de l'Ouest and Others v Receveur Principal des 
Douanes de La Pallice Port [1992] ECR I-1847; Joined Cases C-149/91 and 
C-150/91 Sanders Adour and Guyomarc'h Orthez Nutrition Animale v Directeur 
des Services Fiscaux des Pyrénées Atlantiques [1992] ECR I-3899, paragraphs 25 
and 26; Case C-l 7/91 Georges Lornoy en Zonen and Others v Belgian State [1992] 
ECR 1-6523; Case C-l 14/91 Claeys [1992] ECR I-6559). That right would be illu­
sory if those liable for the tax or charge were not able to challenge before the 
Court of First Instance the Commission's approval of the aid granted. In such cir­
cumstances, the Commission would have an exclusive competence in the assess­
ment of the compatibility of aid measures with the common market, and the 
national courts would have no jurisdiction to review the Commission's action in 
that area. Thus, if this action were to be declared inadmissible, examination of the 
Commission's decision not to open a formal procedure under Article 93(2) of the 
Treaty would in practice be placed beyond the reach of any judicial review. 
147 It should be remembered that, in this case, the action is out of time as regards the 
two aid elements of the WBM in relation to which the applicant has the status of 
a party concerned within the meaning of Article 93(2) of the Treaty. The circum­
stances pleaded by the applicant are in no way capable of reopening the time-limit 
laid down by Article 173 of the Treaty. Moreover, even if a national court does not 
have jurisdiction to rule on the compatibility of aid with the common market 
(Case C-44/93 Namur-Les Assurances du Crédit v Office National du Ducroire 
and Belgian State [1994] ECR 1-3829, paragraph 17), it may nevertheless examine 
the validity of a Commission decision declaring aid compatible with the common 
market. Since the power to hold a Community measure invalid, if it is raised 
before a national court, is reserved for the Court of Justice, a national court which 
considers the decision invalid is required to refer a question to the Court of Justice 
II - 3758 
WATERLEIDING MAATSCHAPPIJ ν COMMISSION 
for a preliminary ruling under Article 177 of the Treaty (Case 314/85 Foto-Frost ν 
Hauptzollamt Lübeck-Ost [1987] ECR 4199, paragraphs 14 to 17). To follow the 
applicant's argument would amount to accepting that every action brought by a 
natural or legal person before the Court of First Instance for the annulment of a 
measure of a Community institution must be held admissible, on the ground that 
national courts do not themselves have jurisdiction to hold measures of those insti­
tutions invalid (same judgment, paragraph 20). Such an interpretation would result 
in depriving the condition that the applicant must be individually concerned 
within the meaning of the fourth paragraph of Article 173 of the Treaty of all legal 
significance. 
148 The applicant's last argument must therefore also be rejected. 
D — Overall conclusions 
149 It follows from the above considerations as a whole that the applicant may be 
regarded as directly and individually concerned by the contested decision to the 
extent only that it declares the relief for self-supplying undertakings and the 
exemption for irrigation or watering purposes to be compatible with the common 
market. However, in so far as it approves those aid elements, the contested deci­
sion is a measure confirming the decisions of 25 November 1992 and 29 March 
1994, which were not challenged by actions within the prescribed time-limits. 
150 The action must therefore be declared inadmissible. 
Costs 
151 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be 
ordered to pay the costs if they have been applied for in the successful party's 
pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its 
own costs and those incurred by the Commission, as pleaded by the latter. 
II - 3759 
JUDGMENT OF 16. 9. 1998 — CASE T-188/95 
152 Under Article 87(4) of the Rules of Procedure, Member States which have inter­
vened in the proceedings are to bear their own costs. The Kingdom of the Neth­
erlands must therefore bear its own costs. 
On those grounds, 
THE COURT OF FIRST INSTANCE 
(Fourth Chamber, Extended Composition) 
hereby: 
1. Dismisses the application as inadmissible; 
2. Orders the applicant to bear its own costs and those incurred by the Com­
mission; 
3. Orders the Kingdom of the Netherlands to bear its own costs. 
Lindh García-Valdecasas Lenaerts 
Cooke Jaeger 
Delivered in open court in Luxembourg on 16 September 1998. 
H. Jung 
Registrar 
P. Lindh 
President 
II - 3760