Opinion of the Advocate General — ECLI:EU:C:2002:169
Date: 2002-03-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary of the Judgment 
1. State aid — Examination by the Commission — Aid of minor importance — 
Commission Notice on the de minimis rule for State aid — Obligation to give prior 
notification — None — Duty to provide all the information which would justify the 
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SUMMARY — CASE C-382/99 
application of the de minimis rule in cases where there is doubt as to compatibility — 
Scope 
(EC Treaty, Arts 5 and 93 (now Arts 10 EC and 88 EC) and Art. 92 (now, after 
amendment, Art. 87 EC); Commission Notice 96/C 68/06) 
2. State aid — Beneficiaries of aid not the recipients of subsidies — Subsidies paid to 
service stations linked to oil companies by price management system clauses — Aid 
granted to oil companies 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. State aid — Commission decision declaring aid to be incompatible with the common 
market and ordering it to be discontinued — Scope — Re-establishment of the 
previously existing situation 
(EC Treaty, Art. 93(2), first subpara, (now Art. 88(2), first subpara., EC)) 
4. State aid — Recovery of unlawful aid — Application of national law — Conditions 
and limits 
(EC Treaty, Art. 93(2), first para, (now Art. 88(2), first para., EC)) 
5. State aid — Recovery of unlawful aid — Calculation of the amount to be recovered 
and determination of the addressees of the orders for recovery — Difficulties 
encountered by the State — Obligation of the Commission and the Member State to 
cooperate — Scope 
(EC Treaty, Arts 5 and 93(2) (now Arts 10 EC and 88(2) EC)) 
1. Although Commission Notice 96/C 
68/06 on the de minimis rule for State 
aid permits Member States, under 
certain conditions, to grant small 
amounts of aid — determined accord­
ing to objective criteria — without 
being subject to an obligation to make 
prior notification, it remains necessary 
for the Member State intending to 
grant such aid to provide the Commis­
sion with all the information which 
would justify the application of the de 
minimis rule in precisely those cases 
where the Commission has doubts as to 
the compatibility of the aid with the 
common market and thus also as to 
whether the conditions laid down in 
the Notice have been met. That duty to 
provide information follows from the 
general duty of Member States to 
cooperate with the Commission in 
good faith, established by Article 5 of 
the Treaty (now Article 10 EC). 
In those circumstances, if a Member 
States does not provide the Commis­
sion with the requested information or 
if it provides only partial information, 
the legality of the decision adopted by 
the Commission, in particular as 
regards the obligation to state reasons, 
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NETHERLANDS v COMMISSION 
is to be assessed in the light of the 
information available to the Commis­
sion when the decision was adopted. 
A Member State therefore cannot rely 
on information which it failed to bring 
to the attention of the Commission in 
the course of the administrative pro­
cedure when contesting the legality of 
such a decision. This is a fortiori the 
case where the Member State has 
refused to reply to an express request 
for information from the Commission. 
(see paras 48-49, 76) 
2. For the purposes of Article 92(1) of the 
Treaty (now, after amendment, 
Article 87(1) EC), measures which, in 
various forms, mitigate the burdens 
that are normally included in the 
budget of an undertaking and which, 
without therefore being subsidies in the 
strict meaning of the word, are similar 
in character and have the same effect 
are considered to constitute aid. In that 
respect Article 92(1) does not distin­
guish between measures of State inter­
vention by reference to their causes or 
aims but defines them in relation to 
their effects 
The aid granted to service stations in 
order to reduce the economic loss 
suffered as a result of the increase in 
duty on petroleum products constitutes 
aid to oil companies where the service 
stations are linked to the oil companies 
by price management system clauses 
aimed at avoiding service stations suf­
fering a lower turnover as a result of 
increased fuel prices following on from 
an increase in duty. The aid paid to 
those service stations has the effect of 
mitigating the burdens which would 
normally have affected the budget of 
companies anxious to maintain their 
market position in the light of deve­
lopments in the domestic and inter­
national markets. Such aid therefore 
has economic effects for the companies 
concerned since the effect of that aid is, 
in any event, to release those com­
panies from their obligation to bear all 
or part of the costs of the forecourt 
discounts offered by dealers to prevent 
loss of market share. 
(see paras 60-63, 66) 
3. The first subparagraph of Article 93(2) 
of the Treaty (now the first subpara­
graph of Article 87(2) EC) provides 
that where the Commission finds that 
aid granted by a State or through State 
resources is not compatible with the 
common market, it is to decide that the 
State concerned is to abolish or alter 
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SUMMARY — CASE C-382/99 
such aid within a period of time deter­
mined by it. The obligation on a State 
to abolish aid regarded by the Com­
mission as being incompatible with the 
common market has as its purpose to 
re-establish the previously existing situ­
ation. 
(see para. 89) 
4. In the absence of pertinent provisions 
of Community law, the recovery of aid 
which has been declared incompatible 
with the common market is to be 
carried out in accordance with the 
rules and procedures laid down by 
national law, in so far as those rules 
and procedures do not have the effect 
of making the recovery required by 
Community law practically impossible 
and do not undermine the principle of 
equivalence with procedures for decid­
ing similar but purely national dis­
putes. 
(see para. 90) 
5. As regards State aid, if a Member State 
encounters unforeseen difficulties in 
implementing an order for recovery, it 
can submit those problems for con­
sideration by the Commission. In such 
a case the Commission and the 
Member State concerned must, in 
accordance with the duty of genuine 
cooperation, work together in good 
faith with a view to overcoming the 
difficulties whilst fully observing the 
Treaty provisions, in particular the 
provisions on aid. 
In particular, the obligation on a 
Member State to calculate the exact 
amount of aid to be recovered — 
particularly where that calculation is 
dependent on information which that 
Member State has not provided to the 
Commission — forms part of the 
more general reciprocal obligation to 
cooperate in good faith in the imple­
mentation of Treaty rules concerning 
State aids imposed on the Commission 
and the Member States. 
Similarly, in a case where a Member 
State has doubts as to the identity of 
the addressees of the orders for 
recovery, it can submit those problems 
to the Commission for its consider­
ation. 
(see paras 50, 91-92) 
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