62001CC0261_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
Introduction
1.
In this case, the Hof van Beroep (Court of Appeal), Antwerp, raises important questions on the interpretation of Article 88(3) EC.
2.
The main issues concern the compatibility with Article 88(3) EC of parafiscal charges levied to finance a system of aid which has not been notified to or authorised by the Commission, in particular where subsequent national measures which are notified to the Commission purport retroactively to provide for the imposition of the charges.
The referring court also asks whether the Commission, in its assessment, has the power to authorise such national measures.
3.
Further questions seek clarification of the judgment of the Court in
TWD, (2) with a view to determining the circumstances in which a Commission decision may be challenged before a national court, and hence may be the subject of a reference to the Court of Justice on the validity of the decision under Article 234 EC, where it has not been challenged directly before the Community Courts under Article 230 EC.
Legal and factual background
4.
The Belgian Law of 24 March 1987 on animal health (‘the 1987 Law̕) introduced a system to finance compensation, subsidies and other benefits connected with combating animal diseases and improving animal hygiene and the health and quality of animals and animal products (‘the 1987 regime̕).
To finance those actions Article 32(2) of that law established an ‘animal health and production fund̕ and provided that the fund was to be financed in part through compulsory charges to be imposed on natural and legal persons who produce, process, transport, handle, sell or trade animals.
The level of charges and the collection procedures were to be set by royal decree.
The Royal Decree of 11 December 1987, which entered into force on 1 January 1988, imposed the charges both on domestic and on imported and exported animals.
5.
Neither the 1987 regime nor most of the amendments subsequently made to it were notified to the Commission.
(3)
6.
Following an inquiry into all ‘set-purpose charges̕ levied in the Member States in agriculture and fisheries and the allocation of those charges, in particular as aid, the Commission initiated a procedure under Article 88(2) EC with respect to the 1987 regime.
In its decision of 7 May 1991 (‘the 1991 decision̕) it concluded that the 1987 regime was incompatible with the common market within the meaning of Article 87 EC, and that it should be discontinued, in so far as the compulsory charges which it imposed extended to products imported from other Member States at the stage of slaughter.
(4)
7.
In the statement of reasons in the 1991 decision the Commission observed briefly that the Belgian authorities had not fulfilled their obligations under Article 88(3) EC because they had not notified the proposal to grant the aid.
(5)
It further noted that, although the aid measures financed under the regime were compatible with the common market as regards both their form and their objectives, they could not be approved because ‘the financing of the aid by parafiscal charges which are also levied on imported Community products has a protective effect which goes beyond aid properly so-called̕.
(6)
Finally, the Commission observed that ‘such compulsory contributions levied on imported animals at the slaughter stage should be considered as discriminatory internal taxes within the meaning of [Article 90 EC] as they benefit national producers alone̕.
(7)
8.
Independently of the scrutiny of the Commission, some importers of animals originating from other Member States instituted legal proceedings against Belgium before the Rechtbank van eerste aanleg (Court of First Instance), in Turnhout and Brussels, claiming that certain charges paid on imported animals on the basis of the 1987 regime were incompatible with Community law.
The two national courts suspended the proceedings and referred various questions to the Court of Justice.
In
Lornoy
(8)and
Demoor
,
(9) the Court of Justice held that the 1987 regime contravened either Article 25 or 90 EC depending on whether the advantages accruing from it to domestic products wholly, or only partly, offset the burden borne by the latter.
With respect to the State aid rules, it concluded that ‘a parafiscal charge of the kind at issue in the main proceedings may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of [Article 87 EC] are met …̕.
9.
The Belgian Government enacted the Law of 21 December 1994, which provided for the reimbursement, subject to certain conditions, of the charges levied, as from 1 January 1988, on imported animals.
10.
On 14 June 1995 the Commission issued a reasoned opinion pursuant to Article 226 EC in which it expressed the view that the imposition of compulsory charges on animals exported from Belgium to other Member States was contrary to Community law.
It closed the investigation, however, after receiving Belgium's observations.
11.
The Law of 23 March 1998 (‘the 1998 Law̕) creates a new regime (‘the 1998 regime̕) to replace the 1987 regime.
That law abolishes the old fund and system of charges and establishes a new ‘budgetary fund for the health and quality of animals and animal products̕ and a new system of charges.
Pursuant to Article 4, the pre-financing and financing of expenditure under the 1987 Law may be charged to the new fund.
Articles 14, 15 and 16 respectively provide for compulsory charges to be imposed on cattle and pig slaughterhouses and exporters, persons in charge of pig farms and dairy farms and those authorised to sell dairy products.
Some of those charges are retroactive to 1 January 1988.
According to the new system the charges are payable only on domestic animals.
Imported animals are no longer subject to charges whereas exported animals were subject to charges only until 1 January 1997.
12.
Under the second paragraph of Article 17, the repayment of all charges levied under the abrogated 1987 regime was to be automatically offset against the payment of charges under the 1998 regime, which were themselves payable in part retroactively.
It appears from the case-file that the amount of the new charges payable retroactively was substantially equal to that of the charges levied on the basis of the old 1987 regime.
13.
Article 23 provides for the 1998 Law to enter into force on the day of publication in the
Belgische Staatsblad
, namely on 30 April 1998.
However, some of its provisions, including Articles 14, 15 and 16, entered into force on the dates from which the charges provided thereunder were payable.
14.
From the
travaux préparatoires
it is clear that the aim of that retroactive effect was to avoid repayment of the charges levied on the basis of the 1987 regime as that would allegedly have prejudiced the financial stability of the system.
15.
The proposed 1998 regime was notified to the Commission by letters of 7 December 1995 and 20 May 1996.
By decision of 9 August 1996 (‘the 1996 decision̕),
(10) delivered at the conclusion of a procedure under Article 88(3) EC, the Commission stated that it had no objection under Articles 87 to 89 EC to the measures at issue.
It noted
inter alia
that, according to the new system, slaughterhouses would no longer have to pay compulsory charges on animals imported from or exported to other Member States or third countries.
Observing that the charges on pig farms and in the dairy sector were unrelated to the origin of the animals or levied only on domestic products, it concluded that the compulsory charges provided for in the draft legislation could not be considered to have ‘a protective effect which goes beyond aid properly so called̕.
16.
The 1998 Law has been challenged before the Arbitragehof, a court which reviews the constitutionality of legislation in Belgium.
That court, called on to determine whether the 1998 Law was in breach of
inter alia
Articles 87 and 88 EC and of the principle of non-retroactivity, observed that retroactive charges may be justified when it is necessary to pursue an objective of general interest, such as the performance or the continuity of a public service.
It seems, however, that it left it to the ordinary courts to assess whether Article 88(3) EC had been breached.
The main proceedings and the order for reference
17.
Openbaar Slachthuis NV is a slaughterhouse.
Eugene Van Calster and Felix Cleeren are cattle dealers.
In 1994 and 1995 those parties, to whom I will collectively refer as ‘the applicants̕, brought proceedings against the Belgian State before the Rechtbank van eerste aanleg, in Mechelen and Turnhout respectively, seeking repayment of charges they had paid on animals, some of them exported from Belgium, on the basis of the 1987 regime.
They claimed that those charges had been unlawfully collected since they were incompatible with
inter alia
Articles 12, 95 and 93(3) of the EC Treaty (now Articles 25, 90 and 88(3) EC).
On 16 May and 19 November 1997, the two national courts found in favour of the applicants and ordered the Belgian State to repay the sums at issue.
The State, however, appealed against both judgments to the Hof van Beroep (Court of Appeal), Antwerp.
18.
The Hof van Beroep considers that the Treaty provisions on charges and taxes are not applicable.
The prohibition under Article 25 EC of charges having an effect equivalent to customs duties does not arise when domestic and exported products are subject to the same charge.
Nor is Article 90 EC applicable because it prohibits discriminatory taxation of imported products only.
The national court also seems to suggest that the retroactive imposition of the charges at issue may be justified by exceptional circumstances of general interest, in particular when, without those charges, the financial viability of the fund would be jeopardised.
Further, in its view, the retroactivity introduced by the 1998 Law is not contrary to the legitimate expectations of the applicants or to the principles of legal certainty, equality of arms, separation of powers, independence of the judiciary, good administration or the right to property.
19.
It none the less has doubts about the compatibility of the 1998 Law, and in particular its retroactive effect, with Article 88(3) EC.
It has therefore referred the following questions in the second of the two joined cases, C-262/01, and the same questions, with the omission of question 2, in the first case, C-261/01:
‘1. In the circumstances outlined above is a system of aid measures compatible with Community law, in particular with Article 93(3) of the EC Treaty (now Article 88(3) EC), which, after its notification, is considered by the Commission on 30 July 1996 to be compatible with the common market and under which the Member State imposes in the general interest, with retroactive effect, contributions or charges:
–
to finance an animal health and production fund,
–
on natural and legal persons whose characteristics are set out in Articles 14, 15 and 16 of the abovementioned Law of 23 March 1998, as amended by the Arbitragehof (Court of Arbitration) in its judgment of 9 February 2000 in Cases Nos 1414, 1450, 1452, 1453, and 1454,
–
because of the activities described in those articles which took place in the period from 1988 until 21 May 1996 in which those aid measures had not yet been approved?
2.
Has the Commission, by approving the aid measures established by the Law of 23 March 1998, also approved the retroactive effect of that law?
3.
Is the Commission Decision of 30 July 1996 merely in the nature of an individual authorisation to a Member State to implement the planned aid measures?
4.
Are the persons owing the contributions directly and individually concerned by the Commission's act within the meaning of Article 173 of the EC Treaty (now Article 230 EC)?
5.
If the answer to question 4 is in the negative, does Article 230 EC then permit the persons owing the contributions, as the beneficiaries of the aid, to raise a plea of lack of competence with regard to the Commission's act whereby authorisation was given to implement the aid measures from which they benefit?
6.
If it is accepted that the [applicants], as persons owing the contributions and/or as beneficiaries of the aid, are directly and individually concerned by the Commission's decision and may therefore lawfully raise a plea of lack of competence, has the Commission exceeded the limits of its competence in adopting its decision of 30 July 1996 and infringed Article 93(3) of the EC Treaty (now Article 88(3) EC)?̕
20.
Written observations were submitted by Belgium, the applicants, the Netherlands and the Commission, which were also, with the exception of the Netherlands, represented at the hearing.
21.
The Commission has also replied in writing to a question put by the Court concerning the compatibility with the EC Treaty of the charges imposed on animals exported to other Member States.
First question
22.
It may be observed at the outset that, as the referring court has emphasised, the 1998 Law substantially reproduces the previous 1987 regime.
The new fund and the new system of charges financing it are very similar – if not identical – to the old fund and the old system of charges.
Unlike the 1987 regime, however, the 1998 regime was duly notified to and approved by the Commission.
23.
The 1998 Law, however, does more than maintain the substance of the 1987 regime in a new statute that is, at the same time, compatible with the common market and legal.
Through a complex mechanism of retroactivity and offsetting of debts, it also seeks to secure to the system the amounts of the charges levied in the
past
on the basis of the 1987 regime to finance the aid illegally granted under that regime.
Crucially, various national courts had ordered that those charges should be repaid since they had been imposed in breach of Article 88(3) EC.
24.
By its first question the referring court asks about the compatibility of that mechanism with Article 88(3) EC.
Doubts are in particular raised by the imposition of compulsory charges with respect to activities which took place
before
the Commission declared that it had no objection to the 1998 aid regime.
25.
It is clear that a proposed aid must be notified to and approved by the Commission before it can be implemented.
Any aid granted before the Commission has adopted a final (positive) decision under Article 88(2) or 88(3) EC is illegal.
Moreover, any such aid should be recovered by the Member State, it being for the national courts, on the basis of the direct effect of the prohibition in the last sentence of Article 88(3) EC, to guarantee that national authorities respect the procedural obligations of that provision.
In the light of those principles, any aid granted by Belgium before the decision of the Commission of 9 August 1996 would be illegal since it would have been granted in contravention of the obligation of non-implementation in the last sentence of Article 88(3) EC.
That would be so whether the 1987 or 1998 regime is considered to be the proper legal basis of the aid.
Such aid would breach the obligations imposed by Article 88(3) EC, being paid either without notification (under the 1987 regime) or during the examination of the proposed scheme by the Commission (1998 regime).
26.
Further, as the Court has held, ‘the Commission's final decision does not have the effect of regularising
ex post facto
the implementing measures which were invalid because they had been taken in breach of the prohibition laid down by the last sentence of Article [88(3) EC], since otherwise the direct effect of that prohibition would be impaired and the interests of individuals, which, as stated above, are to be protected by national courts, would be disregarded.
Any other interpretation would have the effect of according a favourable outcome to the non-observance by the Member State concerned of the last sentence of Article [88(3) EC] and would deprive that provision of its effectiveness̕.
(11)
27.
The question of the referring court, however, focuses not on the spending side of the system but on the financing side.
What is asked is essentially whether the retroactive imposition of charges to finance an aid regime which has not been notified is itself contrary to the obligations under Article 88(3) EC.
28.
The emphasis of the referring court's question is on the issue of retroactivity.
It must first be established, however, whether Community law requires the repayment of charges levied to finance aid which has not been notified to, and authorised by, the Commission.
29.
It is not clear from the case-law of the Court what effect the State aid rules have on charges specifically levied to finance aid illegally granted before the aid is authorised.
The decisions of the Court offer contradictory indications, sometimes even within the same judgment.
(12)
30.
In
France
v
Commission
,
(13) for example, the Court adopted an extensive approach suggesting that the method of financing aid was also caught by the State aid rules.
In particular, the ‘aid as such̕ could not be isolated from the method by which it was financed so that the latter, in conjunction with the ‘aid in its narrow sense̕, could render the ‘whole̕ incompatible with the common market.
(14)
In the
FNCE
case,
(15) which concerned a system of charges similar to that at issue in the present case, the Court made no distinction between the aid and the charges to finance it.
31.
In
Compagnie Commerciale de l'Ouest (16)the Court seemed to distinguish between the levying of the parafiscal charge and the
use
to which the revenue from it was put:
‘the parafiscal charge at issue is governed either by [Articles 25 EC] or by [Article 90 EC].
The use to which the revenue from it is put may … constitute a State aid incompatible with the common market if the conditions for the application of [Article 87 EC? are met …̕
(17)
The final paragraph of that section of the judgment contains a slight variation whereby ‘a parafiscal charge
like the one at issue in this case
may
, depending on how the revenue from it is used,
constitute State aid
incompatible with the common market if the conditions for the application of [Article 87 EC] are met̕.
(18)
32.
The
Sanders (19)and
CELBI (20)judgments followed the same line as
Compagnie Commerciale de l'Ouest
, although they did not present the variation that has been pointed out above, namely that the charges themselves might constitute aid.
(21)
33.
The
Lornoy
and
Demoor
judgments, which concerned the system of charges established by the 1987 regime, repeat almost
verbatim
the relevant statements of the Court in
Compagnie Commerciale de l'Ouest
.
(22)
The very final paragraph in both judgments reproduces the variation found in
Compagnie Commerciale de l'Ouest
, stating that the
parafiscal charge
may, depending on how the revenue from it is used, constitute State aid.
Moreover, after recognising that that assessment should be a matter for the Commission according to the procedure laid down in Article 88(3) EC, the Court adds:
‘in that respect, regard must also be had to the jurisdiction of the national courts where,
in
introducing the charge
, the Member State concerned failed to comply with its obligations under [Article 88(3) EC], and where a Commission decision under [Article 88(2) EC] has found the
levying of the charge
as a method of financing State aid to be incompatible with the common market̕.
(23)
The subsequent decisions of the Court in
Scharbatke (24) and
Nygård
(25) are similarly not conclusive.
(26)
34.
However, the case which is closest to the present is the
FNCE
case
(27) concerning a challenge to a system of charges similar to the one at issue, introduced before the Commission decided that the aid scheme they serviced was compatible with the Common market.
In that case the Court held that ‘the validity of measures giving effect to aid is affected if national authorities act in breach of the last sentence of [Article 88(3) EC].
National courts must offer to individuals in a position to rely on such breach the certain prospect that all necessary inferences will be drawn, in accordance with their national law, as regards the validity of
measures giving effect to the aid
, the recovery of financial support granted in disregard of that provision and the possible interim measures̕.
(28)
35.
That ruling still seems in principle correct.
In my view, national provisions introducing charges
specifically levied for the purpose of
financing aid fall within those ‘measures giving effect to the aid̕ the legality of which must, in accordance with the case-law of the Court, be subject to assessment by national courts pursuant to the last sentence of Article 88(3) EC.
Indeed, in broad terms those charges must be regarded as forming part of the aid regime they service, as their sole justification is to be found in the regime.
36.
That approach may also help to explain the conflicting dicta in the case-law on the question whether the State aid rules apply to charges levied to finance aid illegally granted, and therefore whether such charges are recoverable.
The answer may depend on the nature of the link between the charges and the aid.
Where the aid is financed out of general taxation it would seem clearly inappropriate to require the tax to be recoverable.
Where however the tax is levied specifically for the purpose of financing the aid, recovery will be appropriate.
(29)
37.
I therefore conclude that where a tax or charge is levied specifically for the purpose of financing an illegally granted aid, national courts must order reimbursement of the tax or charge.
38.
Such a conclusion is also justified by the principle of effectiveness.
The Court rightly relied, in
FNCE
, on that principle to justify its view that measures giving effect to the aid, as well as the aid itself, may be regarded as illegal.
That has consistently been the approach of the Court when remedies for breach of the competition rules are in issue.
A parallel can be found in
Courage
v
Crehan
,
(30) where the Court relied, perhaps even exclusively, on the principle of effectiveness in holding that damages could be claimed in the national courts in proceedings between private parties for a breach of the competition rules.
In that case the Court held:
‘As regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be remembered from the outset that, in accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals …
The full effectiveness of [Article 81 EC] and, in particular, the practical effect of the prohibition laid down in [Article 81(1) EC] would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.
Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition.
From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community.̕
(31)
39.
Similar considerations must in my view apply to ensure the effective enforcement of the State aid rules:
the national courts must have jurisdiction, not only to order the recovery of illegally granted aid, but also to order the reimbursement of taxes specifically levied to finance the aid.
Indeed it may be only the taxpayer who has an incentive to challenge the aid;
certainly the State, and the recipient of the aid, will normally have no incentive to do so.
40.
Further, the recovery of charges financing an aid scheme is particularly important if the charges may themselves create distortions of competition and trade which would add to and reinforce the distortion produced by the aid itself.
That may occur if they are imposed on competitors of the beneficiaries of the aid or if the charges are such as to produce a protective effect and give some form of advantage to the domestic market.
41.
Once it is established that national courts must order reimbursement of taxes or charges levied specifically for the purpose of financing an aid scheme which has not been notified to the Commission, the issue of retroactivity can be given a straightforward answer.
It seems clear that it can make no difference that, as appears to be the case here, the Member State introduces new legislation, notified to the Commission, in which it purports in effect to ratify retrospectively the imposition of the charges.
The situation must be assessed at the date of the initial imposition of the charges, and cannot be changed retroactively.
Any other view would enable the Member States to avoid their obligations under Article 88(3) EC and would subvert the system of notification and authorisation provided for by the Treaty.
Nor can it be argued in the present case (as will be seen in my consideration of the second question) that the Commission has in any way authorised the retroactive imposition of the charges.
42.
It may finally be pointed out that the fact that charges are described as a means of financing State aid, and may thus be subject to the obligations under Article 88(3) EC, does not exempt them from the application of Articles 25 and 90 EC.
(32)
Since however the referring court has not posed any question in that regard and since the case-law of the Court offers clear guidance on the application of those provisions
(33) I do not consider it necessary to examine them further.
43.
I therefore consider that the Court should answer the first question as follows:
Where a tax or charge is levied specifically for the purpose of financing an aid scheme, and the aid is illegal for lack of notification, national courts must order reimbursement of the amounts levied.
That is so even where a Member State introduces new legislation, notified to the Commission, in which the Member State purports to ratify retrospectively the imposition of the tax or charge.
Second question
44.
By its second question the referring court enquires whether the 1996 decision of the Commission approved the retroactive effect of the 1998 regime.
The question concerns the introduction by the 1998 regime of a new system of charges, applicable retroactively with effect from 1 January 1988.
The referring court seems to suggest that the Commission, in authorising the new aid regime, thereby accepted that the method of financing that regime was compatible with the common market.
That view is shared also by Belgium and – it seems – by the Netherlands.
45.
It emerges from the file that, during its investigation, the Commission sought clarification of the provisions that laid down the retroactive effect of the charges, but that its main concern was that imported animals should not be subject to the charges.
46.
Similarly, in its 1996 decision the Commission mentioned the charges only to emphasise that there were no concerns with respect to their imposition on imported or exported animals and that, in consequence, the charges did not have any protective effect going beyond aid properly so called.
The decision, therefore, did not mention the fact that the proposed law provided that some of the charges were to be applied retroactively.
47.
It seems evident to me that the Commission has not expressed a view on the retroactivity of the charges.
It could not in any event have done so (nor authorise the system of charges as such) in any circumstances, since that would clearly have been beyond its competence.
48.
The reading I suggest is consistent with the different roles of the Commission and national courts.
Whereas it is for the Commission alone to decide on the compatibility of State aid, it is for the national courts to guarantee respect of the obligation of non-implementation in the last sentence of Article 88(3) EC and to draw all necessary inferences ‘as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures̕.
(34)
49.
I would therefore answer the second question in the negative.
Third, fourth and fifth questions
50.
On the basis of my answer to the second question, the third, fourth and fifth questions do not arise, since they all presuppose that, by authorising the aid scheme, the Commission has also authorised the provisions instituting the charges and their retroactive effect.
I will therefore deal with these three questions only in the alternative.
51.
By its third question the referring court asks whether the decision of the Commission merely authorises the Belgian Government to implement the 1998 regime.
The fourth then focuses on whether those liable to pay the charges are directly and individually concerned by that decision.
The fifth question is put only if the answer to the fourth question is negative.
In that event the referring court asks whether those liable to pay the charges may challenge the Commission's decision in their different capacity as beneficiaries of the 1998 regime.
These three questions should be read together as they all concern the issue whether, and if so under what conditions, those liable to pay charges financing an aid scheme may challenge before a national court a decision of the Commission authorising that scheme.
52.
Under the fourth paragraph of Article 230 EC any natural or legal person may institute proceedings against a decision addressed to another person only if it is established that that decision is of direct and individual concern to the former.
Such a challenge must be brought before the Court of First Instance within two months of publication of the measure, its notification to the plaintiff, or, in the absence thereof, of the day on which it came to his knowledge.
Article 234 EC gives the Court of Justice jurisdiction to rule, on a reference from a national court, on the validity of acts of the institutions of the Community, such as a Commission decision.
53.
However, the possibility of challenging a Community act indirectly by that latter route, which is at issue in this case, is not unconditional.
In the
TWD
case
(35) the Court confirmed the principle that when a natural or legal person has failed to exercise under Article 230 EC, within the applicable time-limit, its right to challenge a decision addressed to it or of direct and individual concern to it, the validity of the decision may not be called in question in proceedings before the national courts.
However, that principle applies only where the standing of a person to challenge the decision directly under Article 230 EC is clear beyond doubt.
(36)
In my Opinion in the
TWD
case, I emphasised that ‘the rights of individuals should not be prejudiced as a result of uncertainty in the law̕.
(37)
Clearly, that consideration is particularly important when a fundamental right, such as that of access to justice, is at stake.
54.
In the present case, I do not consider that the standing of the applicants can be regarded as clear beyond doubt.
55.
A person is directly concerned by a decision of the Commission if that decision directly affects his legal situation and if its implementation is purely automatic and results from Community rules alone without the application of other intermediate rules.
(38)
It could however be suggested that the Commission's decision in the present case is a mere authorisation to the Belgian Government to implement the aid scheme.
If that is the case, the applicants would be directly concerned only by the national implementing measures.
56.
The situation would however be different if there was no real likelihood that the Belgian Government would not adopt the plan and there could be no doubt as to its intention to implement it.
(39)
Some elements in this case would support that conclusion.
It clearly emerges from the file that the proposed 1998 regime was intended to rectify the illegality of the previous regime which had been in force since 1987.
It therefore substantially reproduced it and, most importantly, in doing so it secured to the system, through the retroactive mechanism described above, the revenue from part of the charges levied in the past.
In those circumstances it could therefore be argued that the Commission decision did leave intact the effects of the 1987 regime and hence the applicants were directly concerned.
(40)
57.
If however we consider the position of the applicants as persons liable to pay the charges at issue, it is less clear that they are directly concerned, in particular because the scope of the decision is not unambiguous.
I have taken the view above that the Commission did not authorise the system of charges and their retroactive effect, which would constitute the part of the decision of concern to the applicants.
The most natural reading of the decision seems to be that the Commission took account of the financing side of the system only incidentally, in order to evaluate its effects on the aid regime.
58.
Furthermore, it is difficult to determine whether the applicants are individually concerned, even if the decision were held to have authorised the system of charges and their retroactive effect.
That system applies in a general way to many operators performing various activities with respect to different types of animals.
The case-law which establishes individual concern by reference to the fact that the applicants in question are part of a ‘closed class̕, that their number or identity is fixed and ascertainable at the time of adoption of the decision at issue, or that the decision provided for a retroactive effect, is by no means clear.
(41)
Thus arguments seeking to establish that the applicants represented a closed class on the ground that they had already instituted legal proceedings for the recovery of the charges paid on the basis of the 1987 regime before the proposed Law of 1998 was notified to the Commission, or that, in any event, the retroactivity of the provisions at issue would make them, and perhaps more generally those liable to pay the retroactive charges, part of a closed circle, would not be such as to make the challenge manifestly admissible before the Court of First Instance.
59.
In conclusion, it is not clear beyond doubt that the applicants had standing to challenge the Commission decision at issue before the Court of First Instance under Article 230 EC.
They are consequently not precluded, on the basis of the
TWD
case-law, from challenging the decision at issue before the referring court.
Sixth question
60.
The sixth question asks whether, in adopting the 1996 decision, the Commission exceeded the limits of its competence and infringed Article 88(3) EC.
61.
Clearly, the assumption underlying that question is that the Commission did in fact authorise the system of charges and the retroactive effect in the imposition of part of them.
I have explained above, however, why I do not consider that the decision at issue authorised them.
62.
In any event, I would note that, as the Commission itself seems to accept, any decision to authorise a system of charges which finances an aid regime would clearly constitute a breach of Community law.
That would be particularly so if the Commission were to authorise the retroactive imposition of such charges, thereby nullifying the obligations of prior notification and non-implementation in Article 88(3) EC.
63.
Finally it may be useful to observe that the above conclusions would not substantially differ if the new procedural regulation for the application of Article 88 EC
(42) applied.
That regulation, which grants the Commission only limited powers with respect to the recovery of unlawful aid,
(43) focuses only on the procedures before the Commission and on the Commission's powers;
it cannot be taken as overriding the case-law of the Court of Justice concerning the powers of the national courts.
Conclusion
64.
I therefore consider that the questions referred by the Hof van Beroep, Antwerp, should be answered as follows:
(1)
Where a tax or charge is levied specifically for the purpose of financing an aid, and the aid is illegal for lack of notification to the Commission pursuant to Article 88(3) EC, national courts must order reimbursement of the amounts levied.
That is so even where a Member State introduces new legislation, notified to the Commission, in which the Member State purports to ratify retrospectively the imposition of the tax or charge.
(2)
The decision of the Commission of 9 August 1996, concerning aid No 366/96, did not approve the charges financing the aid regime or their retroactive effect.
(3)
A natural or legal person is precluded from challenging before national courts a decision of the Commission declaring an aid regime compatible with the common market only when the decision is addressed to that person or is clearly of direct and individual concern to that person within the meaning of the fourth paragraph of Article 230 EC and he can therefore challenge that decision directly before the Court of First Instance.
It is not clear beyond doubt that persons liable to pay the charges which partly finance an aid regime authorised by a Commission decision have standing under the fourth paragraph of Article 230 EC to challenge that decision.
(4)
In the context of a procedure under Article 88(3) EC, the Commission does not have the power to authorise the method of financing an aid regime.
Any decision to that effect would therefore be invalid.
(1) .
(2)
–
Case C-188/92
TWD Textilwerke
[1994] ECR I-833.
(3)
–
In particular, it emerges from the order for reference that, among the various amendments, only the Law of 24 April 1996 was notified to and authorised by the Commission.
(4)
–
Commission Decision 91/538/EEC on the animal health and production fund in Belgium, OJ 1991 L 294, p. 43.
(5)
–
Ibid., paragraph 8.
(6)
–
Ibid., paragraph 10.
(7)
–
Ibid., paragraph 13.
(8)
–
Case C-17/91
Lornoy and Others
[1992] ECR I-6523.
(9)
–
Joined Cases C-144/91 and C-145/91
Demoor Gilbert and Others
[1992] ECR I-6613.
(10)
–
OJ 1997 C 1, p. 4.
However the notice published in the Official Journal and the questions of the referring court refer to 30 July 1996 as the date when the decision was adopted.
(11)
–
Case C-354/90
Fédération
n
ational du
commerce e
xtérieur des
produits a
limentaires and Syndicat
n
ational des
n
égociants et
t
ransformateurs de
s
aumon
(‘FNCE
̕) [1991] ECR I-5505, paragraph 16 of the judgment.
(12)
–
See the comments of Advocate General Stix-Hackl in her Opinion in Joined Cases C-34/01 to C-38/01
Enirisorse
, delivered on 7 November 2002, paragraphs 167 to 171.
(13)
–
Case 47/69 [1970] ECR 487.
(14)
–
Paragraph 4 of the judgment.
(15)
–
Cited in note 11.
(16)
–
Joined Cases C-78/90 to C-83/90
Compagnie Commerciale de l'Oues
t
and Others
[1992] ECR I-1847.
(17)
–
Paragraph 32 of the judgment.
(18)
–
Paragraph 35 of the judgment (emphasis added).
Advocate General Tesauro emphasised that ‘the present case is concerned with a parafiscal charge and not aid provided by the AEE ?the public body concerned? from the revenue from that charge.
And even if the aid was found to have been improperly paid, that would have no impact on the legality of the charge as such;
it would continue to be payable and those paying it could not claim reimbursement of it in legal proceedings̕.
(19)
–
Joined Cases C-149/91 and C-150/91
Sanders
Adour and Guyomarc'h Orthez
[1992] ECR I-3899.
(20)
–
Case C-266/91
CELBI
[1993] ECR I-4337.
(21)
–
Sanders
, paragraphs 24 and 27 of the judgment where the Court alternatively refers to the ‘reimbursement̕ of the parafiscal charge or the ‘use̕ to which the revenue is put;
CELBI
, paragraphs 21 and 24, mentioning the ‘use̕ to which the revenue is put.
(22)
–
Lornoy
, cited in note 8,
para
graph
28
of the judgment
;
Demoor
,
cited in note
9
, paragraph 24.
Cf. also Case C-114/91
Claeys
[1992] ECR I-6559, paragraph 21.
(23)
–
Emphasis added.
A significant part of the Opinion of Advocate General Tesauro in those cases is devoted to the analysis of the issue under examination.
Reconsidering his conclusion in
Compagnie Commerciale de l'Ouest
, he now argued that charges financing an aid should be subject to the State aid rules and to the assessment of the Commission and, where levied illegally, should be recovered.
(24)
–
Case C-72/92
Herbert
Scha
r
batke
[1993] ECR I-5509, where, after repeating the distinction between the parafiscal charge and the use of the revenue from it (paragraph 18 of the judgment), the Court concluded that what may constitute a State aid, depending on how the revenue from it is used, is the
collection
of the parafiscal charge (paragraph 20).
(25)
–
Case C-234/99
Nygård
[2002] ECR I-3657.
The Court used without apparent distinction the expressions ‘charge forming part of an aid scheme̕ (paragraphs 52, 56, 57 and 64 of the judgment) or ‘charge intended to finance an aid scheme̕ (paragraphs 60 and 65 of the judgment).
(26)
–
In my Opinion of 30 April 2002 in Case C-126/01
GEMO
I took the view, as regards the validity of measures giving effect to an illegal aid, that it was in principle for national law to determine which national measures were affected and what consequences that invalidity had, for example, for the refund of charges collected on the basis of the measures concerned.
In that case, however, the substantive issue referred to the Court was limited to whether the tax in issue formed part of an arrangement which might be regarded as an aid.
The question of reimbursement of the tax was not referred, and arose only on the admissibility of the reference.
France objected to the admissibility of the reference on the ground that, even if the scheme in issue were an aid, the referring court could at most order the recovery of the aid, but could not order the repayment of the tax levied to finance the aid.
To meet that objection, it was sufficient to point out that a national court could indeed order the repayment of the tax; it was not necessary to consider whether and under what conditions Community law might impose a requirement for the tax to be reimbursed.
The correct position seems to be that, under certain conditions, there is such a requirement; where those conditions are not fulfilled, the matter is one for national law.
(27)
–
Cited in note 11.
(28)
–
Paragraph 12 of the judgment (emphasis added).
In my Opinion in that case, I took the view that where an illegal system of aid is financed by charges imposed on undertakings, the national courts may be required to order that those charges be refunded:
see paragraph 27 of the Opinion.
(29)
–
See the Opinion of Advocate General Warner in Case 177/78
McCarren
[1979] ECR 2161, p. 2204
(30)
–
Case C-453/99 [2001] ECR I-6297.
(31)
–
Paragraphs 25 to 27 of the judgment.
(32)
–
With respect to Article 90 see Case 73/79
Commission
v
Italy
[1980] ECR 1533, paragraph 9 of the judgment;
see also
Nygård
, cited in note 25, paragraph 50 et seq.
(33)
–
See
Nygård
, cited in note 25, in particular paragraph 16 et seq
.
(34)
–
FNC
E
, paragraph 12 of the judgment.
(35)
–
TWD Textilwerke
, cited in note 2, paragraph 17 of the judgment.
(36)
–
TWD
, paragraph 24 of the judgment;
see also Case C-178/95
Wiljo
[1997] ECR I-585, paragraphs 19 to 21.
(37)
–
Paragraph 26 of the Opinion;
see also my Opinion in Case C-239/99
Nachi Europe
[2001] ECR I-1197, paragraphs 75 to 77.
(38)
–
Case T-9/98
Mitteldeutsche Erdöl-Raffinerie
v
Commission
[2001] ECR II-3367, paragraph 47 of the judgment.
(39)
–
Case 11/82
Piraiki-Patraiki
[1985] ECR 207, paragraphs 8 to 10 of the judgment.
(40)
–
Case 69/84
Cofaz
v
Commission
[1986] ECR 391, paragraph 30 of the judgment; Joined Cases T-447/93, T-448/93 and T-449/93
AITEC
v
Commission
[1995] ECR II-1971, paragraph 41; Case T-149/95
Ducros
v
Commission
[1997] ECR II-2031, paragraph 32; Case C-6/92
Federmineraria
[1993] ECR I-6357, paragraph 15.
(41)
–
See, for instance, Joined Cases 106/63 and 107/63
Töpfer
[1965] ECR 405, at pp. 411 to 412;
Case 62/70
Bock
[1971] ECR 897, at pp. 907 to 908;
Piraiki-Patraiki
, cited in note 39, paragraph 19 of the judgment;
Case C-244/88
Usines coopératives de déshydratation du Vexin
[1989] ECR I-3811, paragraphs 11 to 14:
Case C-229/88
Cargill
[1990] ECR I-1303, paragraphs 13 to 18.
(42)
–
Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC], OJ 1999 L 83, p. 1.
(43)
–
See Article 11(2) on the power to issue interim recovery injunctions and, in particular, Article 14(1) which reads:
‘where
negative
decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary …̕ (emphasis added).