Opinion of the Advocate General — ECLI:EU:C:2017:929
Date: 2017-11-30
Language of the case: French
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 20 September 2018 1. State aid — Provisions of the Treaty — Scope — Taxes constituting the method of financing aid schemes — Repayment by national authorities of taxes levied in breach of EU law — Included (Arts 107(1) and 108(3) TFEU) 2. State aid — Provisions of the Treaty — Scope — Taxes constituting the method of financing aid schemes — Included — Condition — Hypothecation between the tax and the aid — Information needed for an assessment — Revenue from taxes allocated exclusively for the grant of aid — Amount of aid granted determined according to criteria unrelated to the allocated tax revenue — Determination by the national court (Arts 107 and 108 TFEU) 3. State aid — Existing aid and new aid — Definition — Measures concerning an increase in the original budget of authorised aid schemes financed by tax revenue — Meaning — Budget increase below 20% — Not included (Arts 107 and 108(1) and (3) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1)) 4. State aid — Existing aid and new aid — Definition — Measures concerning an increase in the original budget of authorised aid schemes financed by tax revenue — Initial budget of an aid scheme — Meaning — Interpretation taking into account everyday language, the context of the measure and the objective of the rules — Tax revenue left available to the body responsible for the implementation of aid schemes (Arts 107 and 108(1) and (3) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1)) 5. State aid — Existing aid and new aid — Definition — Measures concerning an increase in the original budget of authorised aid schemes financed by tax revenue — Budget increase below 20% — Assessment in relation to the revenue earmarked for aid schemes (Arts 107 and 108(1) and (3) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1)) 6. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Commission decision authorising aid schemes — Restrictive interpretation — Scope — Taking into account not only the text of the decision, but also the content of the notification —Budget indicated by the Member State in the notification letter (Art. 107(3) TFEU) 7. State aid — Existing aid and new aid — Measures concerning an increase in the original budget of authorised aid schemes financed by tax revenue — Treated as new aid — Principles of legal certainty and protection of legitimate expectations — Irrelevant (Art. 108(3) TFEU) 8. State aid — Existing aid and new aid — Definition — Measures concerning an increase in the original budget of authorised aid schemes financed by tax revenue —Increase of more than 20% of the initial authorised budget — Rules for calculation — Assessment in relation to the revenue earmarked for aid schemes — Placing in reserve of part of the tax revenue without reallocation for purposes other than the granting of aid — Irrelevant — Levy for the benefit of the general State budget — Examination by the national court or tribunal — Obligation to notify (Art. 108(3) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1)) 1. As a preliminary point, the Court has consistently held that taxes do not fall within the scope of the provisions of the Treaty relating to State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure. Where the method of financing aid by means of a tax forms an integral part of the aid measure, the consequences of a failure by national authorities to comply with the last sentence of Article 108(3) TFEU must also apply to that aspect of the aid, so that the national authorities are required, in principle, to repay taxes levied in breach of EU law (see, to that effect, judgments of 13 January 2005, Streekgewest, C‑174/02, EU:C:2005:10, paragraphs 16, 24 and 25; 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, paragraph 35; of 7 September 2006, Laboratoires Boiron, C‑526/04, EU:C:2006:528, paragraph 43 and the case-law cited, and of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 65 and the case-law cited). (see para. 14) 2. It should be noted that, according to settled case-law, for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market (judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 99 and the case-law cited, and of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 68). The Court has, moreover, already held that, where the body responsible for granting aid financed by a tax has the discretion to allocate the revenue from that tax to measures other than those having all the features of aid within the meaning of Article 107(1) TFEU, such a circumstance is likely to exclude the existence of hypothecation between the tax and the aid. In cases involving such discretion, the revenue from the tax does not directly affect the amount of the advantage granted to the beneficiaries of that aid. However, such a hypothecation may exist where the revenue from the tax is wholly and exclusively allocated for the grant of aid, even where that aid is of different types (see, to that effect, judgments of 13 January 2005, Pape, C‑175/02, EU:C:2005:11, paragraph 16; 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, paragraph 55, and of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraphs102 and 104). It is also apparent from the case-law of the Court that there may be no such hypothecation when the amount of aid is determined solely on the basis of objective criteria, not related to the allocated revenue, and subject to an absolute statutory ceiling (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, paragraph 52). Thus, the Court has held, in particular, that there was no hypothecation between the tax and the aid granted in a case where the amount of the aid was determined according to criteria unrelated to the allocated tax revenue and where national legislation provided that any surplus in relation to this aid had to be reallocated, as appropriate, to a reserve fund or the treasury, that revenue also being the subject of an absolute ceiling, with the result that any surplus is also reallocated to the State’s general budget (see, to that effect, judgment of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraphs 70 to 72). In the present case, it is for the referring court to verify the validity of its assumption that the three taxes formed, during the period at issue, an integral part of the aid schemes at issue in the main proceedings in the light of the elements set out in paragraphs 16 to 22 of the present judgment. In that regard, that court must, in particular, examine whether the placing in reserve of part of the revenues of the CNC had the effect of re-allocating the amount concerned to a measure other than those having all the features of aid within the meaning of Article 107(1) TFEU and assess the potential impact of the reallocation of part of these revenues to the general State budget during the period in question on the existence of hypothecation between the taxes and these schemes. (see paras 19-23) 3. See the text of the decision. (see paras 25, 26) 4. See the text of the decision. (see paras 27-35) 5. An increase in the revenue from taxes financing several authorised aid schemes, when compared to projections notified to the Commission, such as that at issue in the main proceedings, constitutes an alteration to existing aid, within the meaning of Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] and of the first sentence of Article 4(1) of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation No 659/1999, read in the light of Article 108(3) TFEU, unless that increase remains below the 20% threshold laid down in the second sentence of Article 4(1) of that regulation. This threshold must be assessed, in a situation such as that at issue in the main proceedings, in relation to the revenue earmarked for the aid schemes concerned and not to the aid actually allocated. (see paras 36-60, operative part) 6. In this respect, it should be noted that, as they are derogations from the general principle of incompatibility of State aid with the internal market, laid down in Article 107(1) TFEU, Commission decisions authorising an aid scheme must be interpreted strictly (see, to that effect, judgments of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraphs 20 and 24, and of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 74). Furthermore, according to the settled case-law of the Court, in order to interpret such Commission decisions, it is appropriate not only to examine their actual text, but also to refer to the notification made by the Member State concerned (see, to that effect, judgments of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 31, and of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 44, and order of 22 March 2012, Italy v Commission, C‑200/11 P, not published, EU:C:2012:165, paragraph 27). Thus, the Court has already held that the scope of a decision approving an aid scheme is, in principle, limited by the budget indicated by the Member State in its notification letter, even if the budget has not been included in the text of the decision itself (see, to that effect, order of 22 March 2012, Italy v Commission, C‑200/11 P, not published, EU:C:2012:165, paragraphs 26 and 27). (see paras 37, 38) 7. Nor does the need to observe the principle of legal certainty preclude that an increase in the budget of an aid scheme, compared to the budget approved by the Commission, be considered, in circumstances such as those at issue in the main proceedings, to be an alteration to existing aid within the meaning of Article 108(3) TFEU. Indeed, it is apparent from recital 4 of Regulation No 794/2004 that it is precisely for reasons of legal certainty that the second sentence of Article 4(1) of the Regulation lays down a precise threshold below which an increase in the budget of an aid scheme is not considered to be an alteration to existing aid. In fixing this threshold at the fairly high level of 20%, this provision provides for a safety margin that takes sufficient account of uncertainties related to the application of prior control established by Article 108(3) TFEU to aid schemes whose budget fluctuates, such as those at issue in the main proceedings. Moreover, the Court has already held that a Member State may not rely on the principle of legal certainty to disregard information it has provided to the Commission in the framework of the notification of an aid scheme and which determines the scope of the Commission decision authorising that scheme, but must, on the contrary, take this information into account and ensure that the scheme is implemented in accordance with it (see, to that effect, judgment of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 47). In addition, it should be noted that, in the present case, in the Commission document entitled ‘Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections’ and published in the Official Journal of the European Union (OJ 2007 C 246, p. 1), the projections of the French authorities regarding the increase of revenue generated by the three taxes following the reform of the tax on television services were presented as the budget of the authorised aid. In the system of prior control established by Article 108(3) TFEU, neither the Member State concerned nor the beneficiary of an aid scheme can reasonably plead a legitimate expectation that the authority of an authorisation decision will extend beyond the description of the measure as published in the Official Journal of the European Union (see, to that effect, judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraphs 72 to 74). (see paras 44-47) 8. See the text of the decision. (see paras 51-59)