Opinion of the Advocate General — ECLI:EU:C:2005:480
Date: 2005-07-14
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. State aid – Proposed aid – Prohibition of implementation before the Commission’s final decision – Scope – Obligations of national courts (Arts 87(1) EC and 88(2) and (3) EC) 2. State aid – Provisions of the Treaty – Scope – Taxes – Exclusion except in respect of taxes financing aid – Tax coupled with exemptions allegedly constituting aid – Lack of hypothecation of the tax to the exemption from that tax – Excluded (Arts 87(1) EC and 88(3) EC) 3. State aid – Definition – Measures financed by an allegedly unlawful tax – Lack of hypothecation of that tax to the measures concerned – Excluded – Specific case (Arts 87(1) EC and 88(3) EC) 1. According to Article 88(3) EC, the Commission is to be informed of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market, it is without delay to initiate the procedure provided for in Article 88(2) EC, and the Member State concerned may not put its proposed measures into effect until that procedure has resulted in a final decision. An aid measure within the meaning of Article 87(1) EC which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted. (see paras 29-30) 2. Taxes do not fall within the scope of the Treaty provisions concerning State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure. If a tax effectively constitutes an integral part of an aid measure within the meaning of Article 87(1) EC, disregard on the part of the national authorities of the obligations arising from Article 88(3) EC affects not only the lawfulness of the aid measure but also that of the tax which constitutes the method of financing it. For 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 the compatibility of that aid with the common market. There is no hypothecation of a tax to aid which is constituted by an exemption from payment of that tax in favour of certain categories of undertakings, because a tax cannot be hypothecated to such an exemption from payment. Application of a tax exemption and its extent do not depend on the tax revenue. Thus businesses liable to pay a tax cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax. Accordingly, even if the tax exemption for some undertakings constitutes an aid measure within the meaning of Article 87(1) EC, the possible illegality of that aid is not such as to affect the legality of the tax itself, so that businesses which are liable to pay the tax cannot plead the possible illegality of the exemption before the national courts in order to avoid payment of that tax or to obtain reimbursement. (see paras 34-35, 40-44) 3. There is no hypothecation of the tax to the measures financed by that tax, which is necessary for that tax to be regarded as an item of State aid, in the case of a cessation payment to some economic operators, since the amount actually paid in this respect is not dependent on the revenue from the tax, but is laid down, under a decree, within the limits determined by ministerial order on the basis of factors which characterise the situation of each applicant, in particular the state of his resources and his charges. Likewise, there is no hypothecation of the tax to the financing of basic old-age insurance schemes for certain professional groups, since, by virtue of the detailed rules according to which the contribution of the tax to that financing is determined, the tax revenue does not directly affect the amount of the advantage granted to the recipient schemes, which, however, do not carry out an economic activity. There is likewise no hypothecation as regards the allocation of a part of the tax revenue to an intervention fund and a trade committee, since those bodies and the competent Ministers have a discretion as regards that allocation. (see paras 46, 48-49, 54-56)