Opinion of the Advocate General — ECLI:EU:C:2006:219
Date: 2006-03-30
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 – Planned aid – Prohibition on implementation before final Commission decision – Scope – Obligations of national courts (Arts 87(1) EC and 88(3) EC) 2. State aid – Recovery of unlawful aid (Art. 88(2), first para., EC) 1. 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, drawing all the necessary consequences under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted. Although those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that charge or to obtain reimbursement, this is the case only where an exemption for certain operators from a tax of general application is concerned. The situation is quite different where it involves a charge for which only one of the two categories of competing operators is liable. In such a case of unequal liability for a charge, the aid may in fact derive from the fact that another category of economic operators with which the category subject to the charge is in direct competition is not liable for that charge. Accordingly, in a system in which there are two directly competing distribution channels for medicines, namely, that of the wholesale distributors and that of the pharmaceutical laboratories which sell directly, and in which the absence of liability of the wholesale distributors to the tax on direct sales is a deliberate objective, if not the principal objective, of that tax, the objective of the tax on direct sales is, inter alia, to restore the balance of competition between the two distribution channels for medicines, which, according to the legislature, are distorted by the imposition of public service obligations on wholesale distributors alone, the liability of a pharmaceutical laboratory to such a charge may constitute an act giving effect to an aid measure; it is therefore for the national courts, where appropriate, to draw all the necessary consequences under national law as regards the validity of such an act, inasmuch as the absence of liability leads to an overcompensation of the wholesale distributors, to the extent that the advantage which the latter derive from this exceeds the additional costs that they bear in discharging the public service obligations imposed on them. That is why, in such a case, where it is the tax on direct sales itself and not some exemption which is separable from that tax, which constitutes the aid measure in question, it should be accepted that a pharmaceutical laboratory liable to pay such a contribution is entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid in order to obtain reimbursement of the part of the sums paid which corresponds to the economic advantage unfairly obtained by wholesale distributors. The result of this is not, in any case, to allow the national court to increase the number of recipients of the aid. On the contrary, such reimbursement is a very appropriate way of reducing the number of economic operators harmed by the measure deemed to constitute aid, and thus, of limiting the anti-competitive effects of that measure. To grant an economic operator the right to plead that a tax in such circumstances is unlawful in order to obtain reimbursement of the sums paid by way of that tax is, moreover, consistent with the principles underlying the case-law of the Court in relation to parafiscal charges. (see paras 29-30, 32-41, 46, 48, operative part 1) 2. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effects of Community law, provided that, in accordance with the principle of equivalence, such rules are not less favourable than those governing similar domestic actions and that, pursuant to the principle of effectiveness, they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law. In that regard, Community law does not preclude the application of rules of national law which make reimbursement of a mandatory contribution such as the tax on direct sales of medicines borne in France by pharmaceutical laboratories subject to proof by the claimant seeking reimbursement that the advantage derived by wholesale distributors from their not being liable to pay that contribution exceeds the costs which they bear in discharging the public service obligations imposed on them by the national rules and, in particular, that at least one of the so-called Altmark conditions is not satisfied. However, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document. (see paras 51, 56-57, operative part 2)