Order — ECLI:EU:C:2017:694
Date: 2017-09-14
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Agriculture and Fisheries;Approximation of laws;Public health
Procedure: Reference for a preliminary ruling;Rectification
Origin: Portugal

summary of the subject-matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’ and ‘a statement of the reasons which prompted the referring court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the case before the referring court’. 46 In the first place, by its third question, the referring court asks essentially whether Article 107(1) TFEU and Article 108(3) TFEU must be interpreted as precluding the collection of a charge, such as TSAM, in respect of which small retail food outlets are exempt. 47 Even assuming that a tax exemption for certain undertakings constitutes an aid measure within the meaning of Article 107(1) TFEU, the possible unlawfulness of the aid is not such as to affect the legality of the charge in respect of which those undertakings are exempt. In that regard, the Court has held that 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 (see, to that effect, judgment of 27 October 2005, Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraphs 42 and 43 and the case-law cited). 48 Furthermore, the decision to refer contains no information from which it could be inferred that, despite it being impossible for Superfoz to draw any benefit from a possible breach of Articles 107 and 108(3) TFEU, the answer to the third question would nonetheless be necessary for the referring court in order for it to resolve the dispute before it. 49 In those circumstances, it does not appear that the third question is relevant to the subject matter of the dispute in the main proceedings. 50 In the second place, the fourth question concerns the principles of equal treatment, non-discrimination, free competition and freedom to conduct business. 51 The referring court merely points out that there could be doubt as to whether TSAM complies with those principles without providing the reasons on which it bases such doubts. In particular, the decision to refer does not provide any information that would allow an assessment as to whether operators who are liable for TSAM and those who are exempt from that charge are in a comparable situation. Furthermore, any difference in treatment may be justified by appropriate reasons recognised in the case-law of the Court, but, in that regard also, the decision to refer contains no information. It must therefore be held that the decision to refer clearly does not meet the requirements set out in paragraph 45 of the present judgment. 52 Therefore, the third and fourth questions are inadmissible. Costs 53 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Ninth Chamber) hereby rules: Articles 26 and 27 of Regulation No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, as amended by Regulation (EU) No 652/2014 of the European Parliament and of the Council of 15 May 2014, must be interpreted as not precluding the imposition of a charge, such as that at issue in the main proceedings, on retail food outlets only, where the revenue from that charge is not used specifically to finance official controls that have been caused by, or that are for the benefit of, those chargeable persons. [Signatures] * Language of the case: Portuguese.