EN Official Journal of the European Union L 260/104

COMMISSION DECISION (EU) 2016/1700

of 7 April 2016

on State aid SA. 15836 (2012/C) (ex NN 34/2000 and NN 34A/2000) implemented by Austria (AMA marketing measures)

(notified under document C(2016) 1972)

(Only the German text is authentic)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having called on interested parties to submit their comments (1),

Whereas:

(1) By judgment of 27 October 2011 (2), the Court of Justice of the European Union (hereafter: the Court) upheld the Court of First Instance's ruling (3) (now the General Court) by which Commission Decision C(2004) 2037 of 30 June 2004 in State aid case NN 34A/2000 on quality programmes and the quality labels AMA Biosiegel (hereafter: the bio label) and AMA Gütesiegel (hereafter: the quality label) had been annulled.

(2) Following the judgment of the Court, the Commission is required to take the necessary measures to comply with that judgment. It therefore must adopt a new decision.

(3) The judgments cited above are the culmination of a procedure the principal stages of which are set out below.

1. PROCEDURE BEFORE THE COMMISSION

1.1. INITIATION OF THE PROCEEDINGS — COMPLAINTS

(4) Following two complaints of 21 September 1999 and of 5 November 1999, registered on 23 September 1999 and 20 January 2000 respectively, the Commission asked, by letter of 15 February 2000, the Austrian authorities to supply appropriate information concerning aid measures relating to the marketing activities of Agrarmarkt Austria Marketing GesmbH (AMA Marketing), a subsidiary of Agrarmarkt Austria (AMA).

(5) The Austrian authorities supplied the requested information by letter of 20 March 2000, registered on 21 March 2000.

(6) By letter of 4 April 2000 registered on 7 April 2000 the second complainant submitted additional information.

(7) Additional information was also received from the second complainant on 18 May 2000 and on 30 May 2001, registered respectively on 26 May 2000 and on 6 June 2001. A third complaint on the same subject was received by the Commission on 22 January 2003.

1.2. CASE NN 34/2000 AND ADMINISTRATIVE SPLITTING

(8) On the basis of the information received in the complaints the Commission informed the Austrian authorities by means of a letter of 19 June 2000 that the measures concerned had been registered as non-notified aid (NN 34/2000) and asked the Austrian authorities to submit further information. The Austrian authorities replied with letter of 29 September 2000, registered on the same day and with letter of 16 October 2000 registered on 17 October 2000. Additional information was requested by letter of 15 October 2001, to which the Austrian authorities replied by letter of 7 November 2001. By letter of 19 December 2002 the Austrian authorities provided additional information and informed the Commission about the modified (internal) AMA directives (AMA Richtlinien) governing the advertising activities for products displaying the AMA quality label and the AMA bio label which entered into force on 26 September 2002.

(9) By this letter, which included a completed notification form, the Austrian authorities claimed to notify the AMA quality and bio label measures implemented under the new internal rules (4). The Commission maintained however that this letter could not be regarded as a notification of new aid since the modified AMA directives had already entered into force on 26 September 2002 and were thus put into effect prior to any approval of the aid measures that were based on them (5).

(10) Following a request from the Austrian authorities dated and received on 8 March 2004, the Commission decided to split case NN 34/2000. The registration number NN 34A/2000 was given to the examination concerning the provisions on the AMA bio label and the AMA quality label applicable after 26 September 2002, whereas under registration number NN 34/2000 the Commission dealt with the measures concerning the AMA bio label and the AMA quality label before 26 September 2002 as well as with the other marketing measures by AMA.

(11) On 16 March 2004, for internal administrative reasons a new dossier NN 34B/2000 was opened regarding the measures implemented before 26 September 2002. The Commission notes that this case does not have any impact on the substance of the present procedure.

(12) The new AMA internal rules introduced a new design for the labels and made new quality standards applicable to products displaying one of these labels. From the explanations provided by the Austrian authorities and the detailed examination of the new labels and quality standards it appeared that these had been adopted to conform to the new Community rules.

(13) While the new version of the AMA internal rules did not stipulate conditions as to the origin of products, the basic legal act governing AMA, the AMA Act, still referred only to national products. In this regard, by a letter dated 19 December 2002, registered on 23 December 2002, the Austrian authorities confirmed that under the new rules the AMA labels are available to all products regardless of their origin and committed to the subsequent adaptation of the AMA Act. Based on the above grounds, the Commission services considered that the non-notified aid scheme registered as NN 34/2000 had been modified substantially as of 26 September 2002 to conform to the State aid rules and that for this reason a separate assessment of the scheme after that date was justified.

1.3. NON-NOTIFIED AID NN 34A/2000 AFTER SPLITTING

(14) Regarding the case NN 34A/2000, additional information was provided by the Austrian authorities by letters of 2 April 2004 (registered on 5 April 2004), 19 April 2004, 29 April 2004, 4 May 2004, 7 May 2004, 13 May 2004, 9 June 2004, 16 June 2004 and 24 June 2004, all registered on the day of their receipt.

(15) By decision C(2004) 2037 the Commission decided not to raise any objections to that measure and considered it as compatible with the common market within the meaning of Article 87(3)(c) EC (now Article 107(3)(c) TFEU), in that it complied with the conditions imposed by points 13 and 14 of the Community Guidelines for State aid in the agricultural sector (6) (hereafter: the 2000-2006 Guidelines) and by the Community Guidelines for State aid for advertising of products listed in Annex I to the EC Treaty and of certain non-Annex I products (7) (hereafter: the Advertising Guidelines). The aid scheme examined in case NN 34A/2000 was limited in time until 31 December 2008 for all quality label (AMA Gütesiegel) measures and the bio label (Biozeichen) quality support measures, whereas the bio label (Biozeichen) advertising measures were limited in time until 31 March 2006.

(16) According to the decision, all the measures implemented by AMA and AMA Marketing before 26 September 2002, which remained subject to case NN 34/2000 were expressly excluded from the examination in case NN 34A/2000. In this respect it is however not clear when the new AMA internal rules have been put into effect, i.e. whether the aid measures were granted on the basis of the new rules already as from 26 September 2002, the date on which the rules entered into force or whether there was a transitional period after 26 September 2002 during which aid continued to be granted according to the old rules.

(17) In the answer of 14 September 2012 the Austrian authorities maintained that no transitional period applied and that the new rules had been put into effect on 26 September 2002.

1.4. NOTIFICATION OF THE AMA MARKETING MEASURES (GENERIC MARKETING, MARKETING OUTSIDE AUSTRIA AND MARKET RESEARCH) — N 239/2004

(18) On 28 May 2004 the Austrian authorities notified the AMA marketing measures that comprise generic marketing measures, marketing measures outside Austria and market research. The aid scheme registered under State aid number N 239/2004 was approved by Commission decision C(2004) 3945 of 20 October 2004. By decision C(2010) 377 of 21 January 2010 the Commission approved under State aid number N 496/2009 a continuation of the above aid scheme until 31 December 2013. These decisions are not affected by the Court rulings cited above and the approved measures are not subject to the present decision.

1.5. PROLONGATION OF NN 34A/2000

(19) By letter of 15 March 2006, registered on the same day, the Austrian authorities notified a prolongation until 31 December 2010 for the measures regarding the bio label (8) (State aid scheme N 175/2006 approved by Commission decision C(2006) 2281 of 2 June 2006). By letter of 19 November 2008 Austria notified a prolongation until 31 December 2013 of the aid measure NN 34A/2000 regarding both the quality and the bio label which expired on 31 December 2010. The notified aid which was registered as N 589/2008 and approved by Commission decision C(2009) 1092 of 25 February 2009 at the same time replaced the aid measure N 175/2006.

(20) The present decision does not concern the above described approved aid schemes N 175/2006, N 589/2008, N 239/2004 and N 496/2009.

(21) Subject of the present decision are the non-notified AMA measures under aid scheme NN 34/2000 (covering the period before 26 September 2002) and the AMA measures that had been addressed by the annulled Commission decision NN 34A/2000 (covering the period after 26 September 2002).

2. PROCEEDINGS BEFORE THE UNION COURTS (GENERAL COURT AND COURT OF JUSTICE) AND OPENING DECISION

2.1. PROCEEDINGS BEFORE THE GENERAL COURT — CASE T-375/04

(22) The Commission Decision in case NN 34A/2000 was challenged before the Court of First Instance (now General Court) by the complainants referred to in recital 4 on 17 September 2004. The case was registered as T-375/04.

(23) In its judgment of 18 November 2009, the General Court concluded that the Commission should have initiated the formal investigation procedure because of the existence of a contradiction between (i) the wording of the AMA Act of 1992, which according to the General Court limits the scheme to national products, and (ii) the internal AMA directives and the assurances of the Austrian authorities, which had maintained that the scheme was open to products from other Member States. The General Court found that this contradiction sufficed to create serious doubts as to the compatibility of the scheme with the Internal Market.

(24) The General Court therefore concluded (paragraph 86 of the judgment) that the Commission should have initiated the procedure provided by former Article 88(2) EC (now Article 108(2) TFEU). On this ground, the General Court annulled the Commission Decision in case NN 34A/2000.

2.2. PROCEEDINGS BEFORE THE COURT OF JUSTICE — CASE C-47/10

(25) The Republic of Austria on 27 January 2010 appealed the above judgment of the General Court. The appeal was registered as Case C-47/10.

(26) In its judgment of 27 October 2011, the Court of Justice dismissed the appeal brought by the Republic of Austria and fully upheld the ruling of the General Court.

2.3. OPENING DECISION AND SUBSEQUENT PROCEDURAL STEPS

(27) Following the Court's judgment, the Commission opened the formal investigation procedure under Article 108(2) TFEU in case NN 34A/2000. Having regard to the grounds of the judgment, in the opening decision of 12 June 2012 (9), the Commission invited the Austrian authorities and the parties concerned to submit within a month their comments in order to clarify the doubts regarding the contradiction described in recital 23.

(28) The Commission did not receive any comments from third parties.

(29) Austria replied by letter of 29 June 2012 asking for a prolongation of the deadline for reply. The Commission granted an extension of the deadline for reply on 13 July 2012.

(30) The Austrian authorities provided their comments on 14 September 2012.

(31) Additional information was requested by the Commission by letter of 19 February 2014. The Austrian authorities answered on 14 March 2014 and asked for a prolongation of the deadline to reply. Austria submitted additional information on 7 May 2014.

(32) The Commission sent a new request for information on 17 December 2014. On 23 December 2014 the Austrian authorities asked for a prolongation of the deadline to reply. The Commission granted this extension by letter dated 8 January 2015. The reply of the Austrian authorities was submitted on 26 February 2015 and 3 March 2015.

3. DESCRIPTION OF THE AID MEASURES

3.1. TITLE

(33) AMA marketing measures

3.2. DURATION OF THE MEASURE

(34) The AMA Act which establishes AMA entered into force in 1992. According to the information provided by the Austrian authorities in a letter of 4 July 1997, registered on 7 July 1997, the marketing measures have been in place since 1994, i.e. before 1 January 1995, the date when Austria joined the European Union. Nevertheless, the AMA measures were not communicated by the Austrian authorities to the Commission in accordance with Article 143 or 144 of the Act of Accession of Republic of Austria (10).

(35) In the submission of 14 September 2012 Austria stated that the Commission was ‘informed’ about the marketing measures by the Österreichische Weinmarketing. However, the information provided in that submission (11) refers only to appropriate measures imposed by the Commission according to Article 93(1) EC Treaty (now Article 108(1) TFEU) for the wine sector. These measures are not within the scope of the present decision.

(36) By letter of 7 February 1997, in the context of the OECD monitoring report, the Commission informed Austria that the AMA promotion measures could constitute State aid and consequently requested the Austrian authorities to provide all information necessary to assess those measures under the State aid rules in force and to fill in the relevant notification forms. By letter of 23 June 1997 the Austrian authorities provided the requested information and a completed notification form (12).

(37) In their submission of 14 September 2012 the Austrian authorities maintained that the letter of 23 June 1997 constituted a valid notification and that at the expiry of the 2-month period the Member State was entitled to believe that a valid State aid clearance existed for those measures.

(38) Regarding the end date of implementation, the different marketing activities of AMA have to be distinguished.

(39) The Commission notes in this respect that by decision of 20 October 2004 the Commission approved under State aid number N 239/2004 the following AMA marketing measures: generic marketing measures (advertisement and PR-activities), marketing measures outside Austria and market research.

(40) In summary, regarding the AMA bio and quality labels the end date of the measure was 31 December 2008, except for the bio label advertising measures which have expired on 31 December 2006 (see recitals 15 and 19 above). Concerning the other AMA marketing measures, they applied until 20 October 2004, the date on which the notified measure N 239/2004 was approved (see Chapter 1.4 and recital 39 above).

(41) The Commission further notes that a beef promotion campaign measure by AMA was notified and approved under State aid number N 570/1998 by letter of 15 December 1998. The duration of the aid was limited to 2 years.

(42) Except for the measures covered by the Commission's decisions in cases N 570/1998, NN 34A/2000 and N 239/2004, the Commission is not aware of any other approved aid measures related to the AMA marketing activities in the period at issue.

3.3. AID AMOUNT

(43) According to the information provided in the detailed budget reports for the years 1995-1999 (13) and 2000-2008 (14), the following amounts were spent for AMA marketing activities: 1995 : EUR 13 084 204,72 1996 : EUR 16 241 658,38 1997 : EUR 15 306 219,65 1998 : EUR 18 217 604,15 1999 : EUR 18 158 485,48 2000 : EUR 15 867 096,22 2001 : EUR 12 092 317,52 2002 : EUR 13 538 228,32 2003 : EUR 9 044 509,01 2004 : EUR 10 559 442,86 2005 : EUR 8 994 712,20 2006 : EUR 12 193 320,12 2007 : EUR 12 285 344,67 2008 : EUR 15 087 084,71

(44) By letter of 12 June 2012 the Austrian authorities were invited to confirm the above figures and to provide a breakdown of the budget per year for each aid category (advertising for quality labels, advertising for bio labels, generic advertising, advertising outside Austria, quality measures as well as technical support regarding both labels and generic products). The following figures were provided in the submission of 14 September 2012. (EUR) Werbemaßnahmen für Gütesiegel und Biozeichen generische Werbung Werbung außerhalb Österreichs Qualitätsmaßnahmen technische Hilfe für beide Siegel und generische Erzeugnisse Sonstiges nicht zuordenbar Summe 1995 1 299 346,00 6 362 489,86 3 571 312,11 371 139,09 582 771,80 897 145,82 13 084 204,68 1996 2 233 341,97 8 643 529,94 2 888 555,25 394 070,06 779 226,09 1 302 935,06 16 241 658,37 1997 1 711 790,25 8 550 846,55 2 679 179,98 362 098,72 752 833,66 1 249 471,22 15 306 220,38 1998 1 347 618,61 9 607 372,32 3 555 154,59 689 570,37 1 078 268,11 1 939 620,16 18 217 604,16 1999 1 950 511,57 9 740 191,85 3 444 902,31 802 776,30 874 229,94 1 345 873,52 18 158 485,49 2000 1 616 472,22 8 148 390,41 2 387 445,85 1 327 850,90 993 697,77 1 393 239,07 15 867 096,22 2001 1 537 390,80 5 448 146,98 2 234 769,81 728 167,14 899 896,37 1 243 946,42 12 092 317,52 2002 1 336 612,09 7 237 058,31 2 092 667,47 381 162,95 825 295,61 1 665 431,89 13 538 228,32 2003 1 628 162,19 3 561 930,45 1 487 154,69 74 665,78 491 988,97 1 800 606,93 9 044 509,01 2004 1 562 732,58 4 934 174,90 1 366 698,52 129 725,39 804 018,00 1 762 093,47 10 559 442,86

(45) The Austrian authorities provided the following figures for the bio label and the quality label measures in the period 2002-2008. Jahr Gesamtkosten It. Jahresbericht davon AMA-Gütesiegel in % von Gesamt davon AMA-Bio-Zeichen in % von Gesamt 2002 13 538 228,32 1 356 909,27 10,02 320 695,40 2,37 2003 9 044 509,01 2 139 261,31 23,65 829 573,19 9,17 2004 10 559 442,86 1 187 575,61 11,25 994 446,40 9,42 2005 8 994 712,20 1 709 859,07 19,01 714 448,63 7,94 2006 12 193 320,12 2 834 299,23 23,24 327 752,62 2,69 2007 12 285 344,67 3 466 665,92 28,22 641 760,86 5,22 2008 15 087 995,71 3 410 221,60 22,60 1 273 517,59 8,44 Summe 81 703 552,89 16 104 792,01 5 102 194,69

3.4. BENEFICIARIES

(46) From the information available it appears that the beneficiaries of the marketing measures are agricultural producers as well as undertakings active in the processing and marketing of agricultural products, including the food industry.

3.5. LEGAL BASIS

(47) The basic legal act for all AMA marketing measures is the AMA Act — Bundesgesetz über die Errichtung der Marktordnungsstelle ‘Agrarmarkt Austria’ (Federal Law on the establishment of the market-regulating agency ‘Agrarmarkt Austria’) (15).

(48) Following a request for information of 30 April 2014, the Austrian authorities submitted all implementing legal acts (Richtlinien, Verordnungen etc., including internal AMA directives and other internal rules) which govern the quality label and the bio label as well as the respective marketing measures.

3.6. THE AMA MARKETING AND THE PARAFISCAL FINANCING OF THE MEASURE

(49) The AMA is a public law body established in 1992 by the AMA Act and controlled by the State. The scheme is administered by AMA Marketing, a wholly owned subsidiary of the AMA.

(50) In case NN 34A/2000 the Austrian authorities have provided the following information about the status and the activities of AMA:

(51) According to the Austrian authorities, AMA and AMA Marketing do not market goods or services. AMA Marketing supervises the use of the quality label and the bio label, plans and coordinates promotion measures (advertising, fairs, exhibitions, PR-events and similar), produces information materials on quality programmes and labels, and commissions research projects on various subjects connected with quality in agricultural production.

(52) AMA Marketing does not conduct advertising campaigns or product controls. Instead AMA Marketing selects private firms in accordance with national legislation transposing Council Directive 92/50/EEC (16) and subsequently Directive 2004/18/EC of the European Parliament and of the Council (17) to conduct such campaigns or controls.

(53) Austrian agricultural and food industry undertakings pay compulsory levies established by the AMA Act to finance to 100 % those measures. AMA and AMA Marketing themselves are also financed by those levies.

(54) The AMA Act (§ 21c(1)) establishes that the levies have to be paid for the following operations or products: — milk when delivered to be processed, — cereals when milled, — adult bovine animals, calves, pigs, lambs, sheep and fowl when slaughtered, — keeping poultry for the production of eggs, — production of vegetables and fruit, — production of potatoes (except starch potatoes and potatoes used for the production of alcohol), — production and cultivation of garden produce, — cultivation of vineyards, — first commercialisation of wine.

(55) The maximum amount of the contributions is also established in the AMA Act (§ 21d). The concrete level of the contributions is established through a regulation of the administrative board of AMA (Verordnung des Verwaltungsrates).

(56) By letter of 14 September 2012, the Austrian authorities communicated the following amounts of the levies collected in the period 1995-2008 (18): 1995 — EUR 13 833 026,19 1996 — EUR 15 260 738,33 1997 — EUR 14 340 815,84 1998 — EUR 15 473 675,13 1999 — EUR 15 260 405,37 2000 — EUR 15 419 046,38 2001 — EUR 15 228 252,40 2002 — EUR 15 461 156,95 2003 — EUR 13 529 199,62 2004 — EUR 17 320 613,38 2005 — EUR 16 003 552,29 2006 — EUR 16 030 054,67 2007 — EUR 15 909 792,32 2008 — EUR 15 880 813,22

(57) By way of example, in the year 2003 a total of EUR 13 529 199,62 was collected in levies as follows: Milk 7 754 833,88 Adult bovine animals 1 141 663,81 Pigs 1 976 514,84 Calves 31 926,33 Sheep and lambs 34 046,38 Poultry for slaughter 405 925,74 Laying hens 427 690,62 Fruit 769 823,87 Vegetables 408 448,99 Potatoes 243 896,60 Garden produce 334 428,56

(58) According to § 21c (2) of the AMA Act, goods originating outside Austria are exempt from these charges.

4. THE AMA MARKETING MEASURES

(59) By letter of 16 October 2000, in the context of the procedure NN 34/2000, the Austrian authorities provided annual reports for the years 1995, 1996, 1997, 1998 and 1999 in which all AMA marketing measures are listed.

(60) Regarding the quality and bio labels, the Austrian authorities provided a detailed description in the framework of the assessment of the aid scheme NN 34A/2000.

(61) On the basis of this information it appears that the marketing activities can be grouped under the following aid categories: — advertising, which includes advertising regarding the quality label and the bio label, generic marketing measures and advertising measures outside Austria (section 4.1 below), — aid for quality assurance systems, quality controls and controls for organic products for products bearing the quality and bio labels (section 4.2 below), and — technical support measures (section 4.3 below).

(62) A detailed description of the measures per aid category follows in Chapters 4.1 to 4.3 respectively.

4.1. ADVERTISING MEASURES

4.1.1. ADVERTISING MEASURES REGARDING THE QUALITY LABEL AND THE BIO LABEL

(63) According to the information provided by the Austrian authorities regarding the aid scheme NN 34A/2000, the bio label may or may not have included an indication of origin. The quality label always included a specific indication of origin and a second field with colours and/or symbols (graphically) indicating the origin, depending on the Member State or the production region.

Logos used and eligibility under the scheme

(64) According to the information provided by the Austrian authorities on the aid scheme NN 34A/2000, the labels had the following appearance after the year 2002: Appearance of labels as of the year 2002 (19) Quality label (20) (Austria) Quality label (Bavaria) Bio label (indicated origin) Bio label (origin not indicated)

(65) From the examples submitted to the Commission for the period 1995-2002 it appears that the bio label had the same appearance as in the period after 2002, whereas until 31 December 1999 the quality label had a different design (as shown below): instead of the reference ‘AMA Gütesiegel’ the word ‘Austria’ (in the same size) was placed in the central field, i.e. the visually dominant part of the label. Appearance of quality label in the period 1 January 1995 to 31 December 1999

(66) As of January 2000, the original quality label was replaced with the label shown above in recital 65 (21). This is reflected in the annual reports from that period onwards.

(67) According to the information provided relating to the aid scheme NN 34A/2000, the bio label and quality label were granted only with regard to products satisfying certain quality criteria regarding production methods, product characteristics and, in certain cases, requirements relating to the geographical origin of a product.

(68) The Austrian authorities have given assurances that the provisions of Directive 2000/13/EC of the European Parliament and of the Council (22) have been complied with in the subsidised advertising.

(69) The bio label was only granted with regard to organic products satisfying the criteria laid down in Council Regulation (EEC) No 2092/91 (23).

(70) The quality label was awarded only to products that satisfied the quality requirements pursuant to Article 24a (b) of Council Regulation (EC) No 1257/1999 (24). The products fulfilling the quality criteria required for the use of the quality label met the following higher standards within the meaning of point 47 of the 2000-2006 Guidelines (25). Product Criterion Beef, veal pH 36 value < 5,8 within at least 36 hrs. Pigmeat PSE-pigmeat: pH1 value at least 30 min. after slaughter: 6,0 or greater. Only class S and E meat allowed DFE-pigmeat: pH12 value at least 12 hrs after slaughter: max. 5,8. Turkey Bacteriological requirements: maximum total bacteria L 50 000 KbE/cm2 and maximum enterobacteriaceae L 500 KbE/cm2 before cutting, corresponding values L 100 000 KbE/cm2 and L 1 000 KbE/cm2 after cutting. Eggs Only floor and free-range keeping. Participation in a salmonella prevention and control program. Milk and milk products Lipopolysaccharide content ≤ 400 EU/ml Only 1 quality class of 4 existing classes. In the microbiological tolerance range the lower limits according to the Austrian law Milchhygieneverordnung constitute the upper limits accepted for quality label products. If the tolerance range is e.g. 1-3 according to the law, the quality label allows only values up to 1. The content of yeast and moulds in fermented milk products ≤ 10/ml, butter ≤ 100/g, cottage cheese ≤ 1 000 /g. Honey Water content max 19 %, HMF content ≤ 20 ppm. Cereals, cereal products Wheat: hl- weight 80 kg, gluten content 30 %, protein content 14 %, sedimentation value 50 Eh, fall rates 250 sec; rye hl- weight 72 kg, amylogramma 500AE; brewing rye: protein content max. 12 %, whole rye content 90 %. Oil plants and cooking oils Acid figure (SZ) 0,2 mg/kg. Peroxide figure(POZ) (fresh samples) 1,5. Ice cream Only raw milk of highest quality category (S) of three categories. Number of bacteria ≤ 50 000 (tolerance range + 30 000 ) All microbiological highest allowed values lower than those in the Austrian law Speiseeisverordnung. Fruit, vegetables, table potatoes Use of pesticides and herbicides only according to the Integrated Production positive list e.g. only ca. 160 of the ca. 300 plant protection chemicals listed in the Austrian law Pflanzenschutzmittelgesetz are allowed for the quality label products. In nitrogen fertilisation of potatoes only 100 kg pure No/hectare allowed (good agricultural practice in Austria: 175 kg) No sludge waste allowed. No fertilisation without soil analysis nor beyond nutrient level C (optimal nutrient supply).

(71) The region of origin presented in the labels was considered to be the region where the processing of the product took place and from which the determining raw materials (wertbestimmende Rohstoffe) originated. One third of such raw materials may come from other regions if they could not be grown or obtained in the region of origin.

(72) In the production of fresh eggs the laying hens had to be born and fattened in the region concerned. In beef, veal, pork, turkey and lamb production the animals had to be born in the region concerned.

(73) Regarding the logo used for the quality label, in their submission of information of 14 September 2012 the Austrian authorities attached the applicable rules for the period until 1999. This information shows that both the regulatory acts (AMA-Gütesiegel Richtlinien (26), Regulativ für die Verleihung des Rechts zur Führung der Urspungs- und Gütezeichen für Lebensmittel (27)) and the application forms (Antrag auf Verleihung des Herkunfts- und Gütezeichens für Lebensmittel (28)) used the logo shown above at recital 65.

(74) After the year 1999 the logo used for the quality label was identical with the logo shown in recital 64 above.

Eligible costs under the scheme

(75) As regards the quality label, on the basis of the information provided in the annual reports for the years 1995 to 1999 and that relating to the aid scheme NN 34A/2000, it can be concluded that aid was granted for the costs of advertising campaigns to improve the quality consciousness of consumers and to promote the quality label. The aim was to create an image of the quality label as a guide for making purchases (Orientierungshilfe beim Einkauf).

(76) As regards the bio label, aid was granted for the costs of advertising campaigns to inform the consumers about the products bearing the bio label as well as about the requirements for the use of the label and about organic farming in general.

(77) The campaigns consisted of advertisements in printed and electronic media, at points of sale (POS) and public events, at information stands with brochures concerning the products bearing the quality label or the bio label, in information leaflets, as part of product tasting at fairs and other public occasions as well as other means to get the consumers' attention, such as floor stickers (placed in supermarkets) with symbols and information relating to the quality label and the bio label. The campaigns concentrated on different product groups at a time depending on the local and market situation.

(78) According to the information provided by the Austrian authorities in relation to the measure NN 34A/2000 the advertisements or activities at POS and public events for the period 2002-2008 did not make reference to any named producers or brands. Instead they only contained information on the product quality requirements and quality controls connected with the quality label so that the consumers could recognise the special quality of the products bearing the label. Support for POS activities was available to all interested undertakings that wished to organise such campaigns on their premises. These undertakings themselves did not receive any direct aid under the notified aid scheme.

(79) Furthermore, according to the Austrian authorities, the origin of the product, where mentioned, had to be the secondary message in the subsidised advertising. The Austrian authorities have submitted representative examples of printed and audiovisual advertising to illustrate how the advertisements were designed in order to ensure that the message concerning origin always stayed secondary.

(80) From the information relating to the measure NN 34A/2000 it appears that part of the bio label measures concern EU co-financed promotion activities.

4.1.2. GENERIC ADVERTISING MEASURES

(81) The information provided in the annual reports 1995-1999 shows that the advertising campaigns concerned milk and milk products, meat and meat products, eggs, fruits, vegetables and potatoes as well as products processed from these raw materials and flowers.

(82) The advertising campaigns consisted of advertisements in printed and electronic media and sales promotion at points of sale (POS), fairs and public events. Sales promotion made use of information stands with product samples and brochures concerning the advertised products and other means to get the consumers' attention, such as product testing, prize contests (Gewinnspiele) as well as posters, flags and pavement stickers with information relating to the advertised products. Furthermore, various printed and other materials were produced in order to promote different products or groups of products. Such materials include information leaflets, magazines, cookery books, printed clothes and promotional gifts.

Concrete campaigns carried out under the scheme

(83) In the advertising examples from that period available to the Commission the origin of the product appears in word and symbol not only in the quality label but also elsewhere in the advertising material.

(84) To provide a few examples contained in the 1995 annual report and the samples submitted by Austria to the Commission: — a campaign of 1995 referred to ‘Geflügel aus Österreich’. The main visual field of the logo shows the Austrian flag, — an advertising campaign of 1995 was run under the title ‘Appetite for Austria’ (‘Appetit auf Österreich’). The main visual field of the logo (with the word ‘Österreich’) used the Austrian flag as a background. In the descriptive part of the advertisement a clear reference to the origin of the products was made ‘Foodstuff from Austria — why?’ (‘Lebensmittel aus Österreich — warum?’), — a campaign promoting eggs from Austria was run in the year 1995 as ‘Quality eggs fresh from Austria’ (‘Qualitätseier frisch aus Österreich’), — promotional material on strawberries submitted to the Commission was run with the logo ‘Fruit from Austria’ (‘Obst aus Österreich’), — a campaign for veal was run under the motto ‘Austrian beef — every piece is a pleasure’ (‘Österreichisches Rindfleisch, jedes Stück ein Gustostück’), — a campaign for pig meat was run under the motto ‘Pigmeat from Austria — you know what you eat’ (‘Schweinefleisch aus Österreich, da weiß man was man isst’), — a campaign for cheese was run under the motto ‘Typisch Österreich, Käse mit Charakter’.

(85) The annual report of 1996 summarises the mission of AMA as follows: ‘to convince domestic consumers, despite the growing diversity of the European foodstuff, of the benefits of Austrian products’ (‘die einheimischen Konsumenten, trotz der zunehmenden Vielfalt des europäisch werdender Lebensmittelangebotes, von den Vorzügen österreichischer Produkte zu überzeugen’) (29). It then goes on: ‘The cultivation of a “preference for Austria” is a major contribution to maintaining the market share for our farm products’. (‘Diese Kultivierung der “Präferenz für Osterreich” ist ein wesentlicher Beitrag zur Marktanteilsicherung für unsere Agrarprodukte’). The same report states that the cooperation between AMA Marketing and the national producers was so successful that foreign milk and butter producers hardly entered the Austrian market (30).

(86) The final chapter of the report called ‘Patriotism valued by trade and the consumer’ (‘Patriotismus bei Handel und Konsument gefragt’) states that the high market share of national products as compared to the competition from other EU products had been safeguarded (31). The report names the companies (retailers) involved (32) in the campaign and underlines that the use of the red-white-red logo was combined with highlighting the advantages of Austrian foodstuffs for consumers.

(87) Regarding the campaigns and actions run in the year 1996 the following are provided as examples: (a) The report refers to the campaign ‘Our butter is irreplaceable’ (‘Unsere Butter kann durch nichts ersetzt werden’) (33). (b) Other examples cited in the yearly report refer to domestic meat: ‘Austria's best recipe’ (‘Österreichs bestes Rezept’), ‘Beef and veal from Austria’ (‘Rindfleisch aus Österreich’) (34). The coverage of the distributed materials seems to have been significant. The yearly report refers to 400 000 printed copies for the brochure ‘Veal from Austria’ (‘Kalbfleisch aus Österreich’) and 800 000 copies for the brochure ‘Everything about meat’ (‘Alles über Fleisch’) (35).

(88) The report also mentions campaigns with no reference to the origin of the products such as ‘Milch — white energy’ (36) or the school campaign run under the slogan ‘The unbeatable apple’ (‘Der unbesiegbare Apfel’) (37). The latter contains no reference to brand names or to the origin of the product, but only refers to generic characteristics of the fruit (nutrients, energy, vitamins and minerals etc.).

(89) The annual report of the year 1997 mentions that the AMA measures managed to ‘build barriers to entry for other EU products’ and cites the case of yoghurt for which the national producers reconquered a 15 % market share back from foreign producers (38).

(90) For the year 1999, in some advertising examples the advertising relates to particular firms (for instance a printed advertisement about Austrian cheese refers to the cheese producer [……] (39) and advertising for Austrian eggs to the food retail company [……] (40)).

(91) In the advertising for yoghurt bearing the AMA quality label the following text was displayed ‘Yoghurt from Austria’ (41).

(92) The annual reports for the years 1997, 1998 and 1999 contain similar campaigns and slogans as described above.

(93) The annual reports for the year 2000 and 2001 refer to campaigns such as: (a) Milk advertising (‘Frische Milch hat's in sich’) (42) (b) A school milk campaign (43) (c) The campaign Youth 2000 (Jugend 2000) (44) (d) A brochure for the generation 50+ (45)

4.1.3. ADVERTISING MEASURES OUTSIDE AUSTRIA

(94) The purpose of the advertising measures was to inform consumers and professionals about offers of products from Austria — their taste and culinary use — and to encourage them to (for the first time) try such products.

(95) The advertising campaigns consisted of advertisements in the media, brochures and leaflets, promotional gifts, testing of products and direct e-mailing to consumers.

(96) Advertising for Austrian products was done also in the context of Austrian food weeks and of international fairs in EU Member States outside Austria.

(97) According to the Austrian authorities, the levies for the period 2002-2008 referred to above did not result in any discriminatory effect within the meaning of Article 90 of the EC Treaty (now Article 110 TFEU). In particular, they state that there are no indications that products of Austrian origin marketed outside Austria could not benefit from the measure to the same extent as products marketed in Austria.

4.2. STATE AID FOR QUALITY PRODUCTS

(98) As regards the AMA quality and bio labels, aid was granted for the development of quality assurance systems (studies on improving the quality of production in general, drafting and distribution of quality assurance documents, development of related informatics systems within AMA Marketing), quality controls and controls for organic products (on-spot controls by external bodies and laboratory analyses). All routine quality controls were paid by the licence bearers themselves.

(99) In addition, a measure consisting in the introduction of a quality assurance scheme ISO 9002 is listed in the annual reports 1995-1999.

4.3. TECHNICAL SUPPORT MEASURES

4.3.1. TECHNICAL SUPPORT FOR THE QUALITY AND BIO LABEL

(100) Aid was granted for general information projects, PR-activities to disseminate general knowledge about the labels and for competitions organised to promote the quality labels (Gewinnspiele).

(101) Eligible were costs incurred to organise information meetings and to produce leaflets, catalogues, newsletters and internet contributions.

(102) The aim was to give consumers factual information about the AMA quality label and bio label programme in general, such as the quality orientation of the quality label programme, the content of the labels and the control systems.

(103) According to information from the Austrian authorities, the above measures did not concern specific product groups nor did they induce customers to buy a given product.

4.3.2. TECHNICAL SUPPORT FOR GENERIC PRODUCT INFORMATION, INCLUDING MARKET RESEARCH

(104) According to the annual reports, in the period 1995 until 1999 aid was granted for general information and PR activities, the organisation of and participation in fairs, and market research

(105) The general information and PR activities for which aid was granted aimed to present generic characteristics of foodstuffs and dealt with concerns of general interest, such as providing advice and information in case of a food scandal. The PR activities also included the improvement of the communication basis in the media and used channels such as press releases, press conferences, press service, newsletters, open door days and lobbying.

(106) Aid was also granted for the organisation of and participation in events such as competitions, conferences, seminars and workshops in Austria, as well as in ‘Austrian weeks’ and fairs in other EU Member States.

(107) Aid for market research was granted for the preparation of studies concerning general food market data, the development of the markets, consumer behaviour, trends and analyses of the sales of the relevant agricultural products.

5. AID INTENSITIES

(108) The aid covered 100 % of the eligible costs of the AMA marketing measures.

(109) According to the information provided by the Austrian authorities, the aid for quality products and for technical support regarding the quality and the bio label never exceeded EUR 100 000 per beneficiary in a 3-year period.

(110) Concerning control measures regarding the use of the quality label, the Austrian authorities confirmed that the aid was eliminated by 2009.

6. ASSESSMENT OF THE AID

6.1. PRESENCE OF AID

(111) Article 107(1) TFEU prohibiting State aid applies if an aid is granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods in so far as it affects trade between Member States.

6.1.1. AID GRANTED BY THE STATE OR THROUGH STATE RESOURCES

(112) As regards the classification of funds as State resources, no distinction needs to be drawn between cases where the aid is paid directly by the State or where it is paid by public or private bodies designated or established by the State for that purpose (46).

(113) The Commission notes that in the present case the aid is granted not directly by the State but by AMA, an intermediate body established by law and controlled by the State (see recital 49). AMA administers and wholly owns AMA Marketing, on the basis of which it can be presumed that it exercises a decisive influence on the latter. For the purpose of this section, AMA and AMA Marketing will therefore be assessed together. Therefore, it has to be examined whether the levies collected by AMA can be regarded as State resources imputable to the State.

(114) AMA and AMA Marketing have been established by law. The State establishes the objectives of these bodies (Article 2 of AMA law), their management structure (Articles 4-17 of AMA law), and the composition of the management board (see also recital 118). These bodies are therefore controlled by the State. Their marketing activities are funded by parafiscal levies (see recital 49 and 53) (47). The AMA law (Article 21a(1)) establishes the use of the collected levies. AMA is subject to scrutiny by State institutions, such as the Austrian Court of Auditors (48). Furthermore, Article 29 of the AMA law states that, when carrying out administrative procedures, AMA applies the the General Administrative Procedure Act (allgemeines Verwaltungsverfahrensgesetz).

(115) The decisions of the AMA can be challenged at the Bundesverwaltungsgericht (Federal Administrative Court) (49). According to the 2004 version of the AMA law, the decisions of AMA can be challenged with the Ministry of Agriculture and Forestry.

(116) The collection of the contribution under the AMA Law is a competence of the AMA. AMA has the competence to inspect premises or agricultural areas and to ask for reports or evidence from the undertakings liable for the levy (50). Offences against the AMA law are punishable by the district administrative authority (Bezirksverwaltungsbehörde) with a fine of up to EUR 3 630 (51). An attempt to circumvent the AMA rules is punishable as well. In case the fine is not collectible a period of imprisonment of up to 6 weeks can be imposed (52).

(117) The Austrian authorities stated that the purpose of the levy, its scope and the maximal level of the levy are established by the AMA Law (53). The concrete level of the levy is established by the management board of AMA (Verwaltungsrat der Agrarmarkt Austria). The management board establishes the concrete level of the levy based on the market situation of each product concerned, the development of sales, the income situation of domestic products in Austria and abroad and the need for and appropriateness of implementation of marketing measures (54).

(118) The management board of AMA is composed of 4 members representing the Chamber of Agriculture (Landwirtschaftskammer Österreich), the Federal Chamber of Labour (Bundesarbeitskammer), the Chamber of Economy (Wirtschaftskammer Österreich) and the Austrian Federation of Trade Unions (Österreichischer Gewerkschaftsbund) (55).

(119) In the opening decision, the Commission has checked the application of the Pearle jurisprudence to the case at hand. On 15 July 2004 the Court of Justice pointed out in its judgment in the Pearle case (56) that compulsory contributions levied by an intermediary body on all undertakings in a commercial sector can be regarded as not constituting State resources when the following four cumulative conditions are met: — the measure in question is adopted by the professional organisation representing the undertakings and employees in a commercial sector and is not used as an instrument for implementing a policy adopted by the State, — the objectives thus adopted are fully financed by contributions from the undertakings in the sector, — the financing method and the percentage/amount of the contributions are adopted in the commercial sector's professional organisation by representatives of the employers and employees without State intervention, — the contributions must be used to finance the measure without any possibility for the State to intervene.

(120) On the basis of the information available, the Commission considers that the scheme does not fulfil all these conditions.

(121) As regards the first condition, it has to be noted that the financing of the marketing measures is administrated not by a professional organisation representing the sector but by AMA Marketing, a public body established and controlled by the State (see recital 49 and Article 3 of the AMA Act).

(122) Concerning the third condition, the levy and the maximum amount of the contributions is imposed by means of law (i.e. by the AMA Act) and collected by a body controlled by the state and not by a commercial sector's professional organisation Moreover, pursuant to the AMA Act the levy is compulsory (see recital 53). These elements demonstrate the State intervention regarding the aid financing method.

(123) Hence, the Commission considers that the present case differs from the conditions under which the contributions analysed in the judgment of the Court of Justice in the Pearle case were considered not to constitute State resources.

(124) On 30 May 2013, in the Doux Élevage case, the Court of Justice answered a question referred for a preliminary ruling on the interpretation of the concept of state resources (57).

(125) In its judgment, the Court concluded that a national authority's decision extending, to all those working in the agricultural sector, an agreement which, within the framework of an interbranch organisation recognised by the national authority, introduces a contribution with a view to enabling the implementation of measures on communication, promotion, external relations, quality assurance, research and defending the interests of the sector concerned, and thus makes the duty to pay the contribution generally applicable, does not constitute State aid.

(126) In its judgment, the Court considered that the contributions in question came from private economic operators which carry out an activity on the markets concerned, which means that this mechanism did not involve any direct or indirect transfer of State resources. The funds created by the payments did not pass via the State budget or via another public entity and the State did not relinquish any resources in any form whatsoever (such as taxes, charges, contributions or other), which, under national legislation, should have been paid into the State budget.

(127) Unlike this case, the present case does not involve (voluntary) contributions collectively established by an interbranch organisation. As shown in recital 53 above, the Austrian agricultural and food industry undertakings pay compulsory levies established by the AMA Act. The levies are therefore not of a private nature but are mandated by the state through a legislative act.

(128) Furthermore, as opposed to the Doux Élevage case, AMA does not concern contributions introduced by private organisations. As shown above in recitals 49 to 54, the contributions are established by the state and administered by AMA, a public law body established by the AMA Act and controlled by the State. AMA Marketing, a wholly owned subsidiary of the AMA, administers the scheme.

(129) In the Doux Élevage case, the Court considered that the contributions at issue retained their private character throughout and the national authorities were not in fact allowed to use those resources mainly to support certain businesses. Rather, it was the interbranch organisations concerned which decided on the use of those resources, and those resources were consequently entirely dedicated to the fulfilment of objectives determined by those organisations. Also, the resources were not constantly subject to public monitoring and were not available to the State authorities.

(130) As opposed to the Doux Élevage case, in the present case the objectives pursued by AMA are not set by a private organisation deciding on the use of these resources, but in the legislative act governing the public body (i.e. the AMA Act, see recital 54).

(131) Therefore, the conditions of the Doux Élevage case for assuming the existence of private resources are not met.

(132) For the above reasons, the Commission considers that the funding of the measures in question carried out by AMA is attributable to the State and that the funds thus constitute State resources.

6.1.2. SELECTIVE ADVANTAGE

(133) According to settled case-law of the Court of Justice, measures which, whatever their form, directly or indirectly favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid (58). In addition, measures which, in various forms, mitigate the charges which 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 (59). The Court of Justice also pointed out that a measure adopted by the public authority and favouring certain undertakings or products does not lose the character of a gratuitous advantage by the fact that it is wholly or partially financed by contributions imposed by the public authority and levied on the undertakings concerned (60).

(134) The measure benefits companies active in the production, processing and marketing of agricultural products, including the food industry (see recital 46) by the means of advertising, support for quality products and technical support.

(135) In this respect, the Austrian authorities were invited to provide more information about the scope of beneficiaries as well as about the number of beneficiaries for each marketing measure. In their submission of 14 September 2012, the Austrian authorities replied that it is not possible to identify the beneficiaries of each single measure, since not only the producers and the retailers using the logos benefitted from the scheme, but also the producers not directly participating in the scheme and thus the sector as such. Austria argued that the measures increased the awareness of consumers in general so that even producers not participating in the scheme had to increase the quality of their products.

(136) Furthermore, in the opening decision, the Commission requested Austria to clarify to which extent the food industry benefits from the marketing measures. The Austrian authorities used the same argument as above (recital 135).

(137) According to the jurisprudence (61), a measure maintains its selective character even if it applies to an entire sector (but not to other sectors). The arguments of the Austrian authorities claiming that the measure is general in nature have to be rejected.

6.1.3. DISTORTION OF COMPETITION AND EFFECT ON TRADE

(138) According to the case-law of the Court of Justice, strengthening the competitive position of an undertaking through the granting of State aid generally distorts competition with other competing undertakings not having benefited from this aid (62). Aid for an undertaking that operates in a market open to intra-Union trade is liable to affect trade between Member States (63).

(139) There was a substantial intra-Union trade in agricultural products in the period 1995-2008. By way of example, in the year 2004 agricultural products in the EU worth some EUR 183 billion (imports) to some EUR 187 billion (exports) were subject to intra-Union trade, accounting for some 57 % of the total agricultural production of EUR 324 billion (64).

(140) Therefore, with a view to the substantial intra-Union trade in agricultural products in the relevant period, it can be considered that the measures object of the present decision distort or threaten to distort competition and affect trade between Member States. This is moreover confirmed by some of AMA's own statements in its annual reports of the relevant period (see recitals 84-90 above), which demonstrate AMA's understanding that the marketing activities were apt to promote domestic production in competition with producers from other Member States.

(141) In the light of the foregoing, the conditions of Article 107(1) TFEU are fulfilled. It can therefore be concluded that the measures object of the present decision constitute State aid within the meaning of that Article.

6.2. TEMPORAL SCOPE OF THE DECISION AND EXISTING AID

(142) The non-notified AMA marketing measures under aid scheme NN 34/2000 and the AMA measures of the annulled Commission decision NN 34A/2000 were the subject of the 2012 opening decision.

(143) Taking into consideration that the AMA law and its implementing provisions have been modified several times, that many procedural steps have taken place and that the aid consists of numerous measures with different duration, the exact starting and final date for the implementation of the measures and thus the temporal scope of the decision have to be determined.

(144) According to the information provided by the Austrian authorities, the marketing measures have been in place since 1994, i.e. before 1 January 1995, the date when Austria joined the European Union. Nevertheless, the AMA measures were not communicated by the Austrian authorities to the Commission in accordance with Article 143 or 144 of the Act of Accession of the Republic of Austria (see recital 34) and therefore cannot be regarded as existing aid. Therefore, these measures should be considered as new aid not notified as of the date of accession on 1 January 1995, which therefore should be considered as the starting date for the granting of the aid.

(145) Further, as described in recital 36, the Austrian authorities claim that by letter of 23 June 1997 they provided a completed notification form regarding the AMA marketing measures to which the Commission did not react within the prescribed 2-month period (65). In their view, this was a valid notification and, following the 2-month period, the aid should be considered as approved and thus be qualified as existing aid. The same line of argument is used in a legal opinion attached to the submission of information from 25 February 2015.

(146) The Commission disagrees with this argument. Since the measures were implemented already before 1997, the above letter cannot be considered as a valid notification of the measures complying with Article 108(3) TFEU and thus the aid does not qualify as an existing aid. According to the Lorenz judgment, aid would only be considered existing aid if it had not yet been implemented when the measure was notified to the Commission; in case of prior non-implementation, aid could only be considered existing aid if the Member State, following a 2-month period, had given prior notice to the Commission. However, the Austrian authorities have implemented the measure before formal notification and have not given the Commission any prior notice. Therefore, the above letter of 23 June 1997 does not transform the present measure into an existing aid in the meaning of Article 108(1) TFEU.

(147) In the light of the above information and considerations, the Commission concludes regarding the temporal scope of the decision that the start date of all AMA marketing measures is 1 January 1995 (see recital 34 and 144).

(148) Regarding the end date of implementation, by letter of 14 September 2012 the Austrian authorities confirmed that the measures notified as aid scheme N 239/2004 relate to one part of the AMA measures investigated under case number NN 34/2000 (after a substantial modification of the measures in order to comply with the applicable rules (see recital 39).

(149) In the same letter the Austrian authorities confirmed that, in the period after the year 2002, AMA Marketing did not implement aid measures other than those covered by NN 34A/2000 and N 239/2004 (and their subsequent prolongations (66)).

(150) From the information provided by the Austrian authorities, it results that the approved aid scheme N 570/1998 does not relate to the AMA marketing measures which are the object of this decision.

(151) Concerning the AMA bio and quality labels the end date for the granting of aid was 31 December 2008, except for the bio label advertising measures which ended on 31 December 2006 (see recitals 15 and 19).

(152) The other AMA marketing measures applied until 20 October 2004, the date on which decision N 239/2004 was approved (see Chapter 1.4 and recital 39 above). Therefore the scope of the present decision concerns the period 1 January 1995 to 31 December 2008 for all measures except for the bio label advertising measures where the relevant period is 1 January 1995 to 31 December 2006 and the other marketing measures where the relevant period is 1 January 1995 to 20 October 2004.

7. UNLAWFULNESS OF THE AID

(153) According to Article 108(3) TFEU the Commission must be informed of any plans to grant or alter aid. According to Article 1(f) of Regulation (EC) No 659/1999, new aid put into effect in contravention of Article 108(3) TFEU is unlawful. The obligation to notify State aid is set out in Article 2 of that Regulation.

(154) Austria did not inform the Commission, pursuant to Article 108(3) TFEU, of the provisions introducing the measures and the levy financing it before putting them into effect.

(155) As shown above in Chapter 6, the measures implemented by Austria constitute State aid. As stated in recital 34 the marketing measures have been in place since 1994, i.e. before 1 January 1995, the date when Austria joined the European Union. Nevertheless, the AMA measures were never communicated by the Austrian authorities to the Commission in accordance with Article 143 or 144 of the Act of Accession of the Republic of Austria. Therefore the aid constituted new aid at the time of accession and the Austrian authorities should have notified it. In the absence of a proper notification the aid is unlawful under the respective provisions of the TFEU (see in this respect also recital 144).

(156) Furthermore, as described in recitals 9, 36 and 148, neither the letter of 23 June 1997 nor the letter of 19 December 2002 can be considered as a valid notification of this new aid.

8. ASSESSMENT OF THE COMPATIBILITY OF THE AID

8.1. RULES REGARDING THE ORIGIN OF THE PRODUCTS

(157) The General Court annulled the Commission decision NN 34A/2000 on the ground that a contradiction existed within the AMA Act of 1992. In its paragraph 21a relating to the purpose of the contribution a reference was made to national products. More precisely, point 1 referred to the objective of ‘promoting and guaranteeing the sale of national agricultural and forestry products and their derivative products’ (67). Point 2 referred to ‘promoting other marketing measures (in particular the supply of services and staff costs connected therewith)’.

(158) The General Court stated that the restriction to national products in point 1 of paragraph 21a of the AMA Act of 1992 raised doubts as to the compatibility of the aid in question which should have led the Commission to initiate a formal investigation procedure (68).

(159) The issue of the national origin of the product is therefore an element which requires a detailed analysis.

(160) The complainants maintained that the labels and the subsidised measures were available only for Austrian producers. They claimed in this respect that under paragraph 21a(1) of the AMA Act of 1992 only Austrian products would benefit from the subsidised advertising measures.

(161) In this regard, the Austrian authorities have clarified by letter of 19 December 2002 that the AMA quality and AMA bio labels were available for all products regardless of their origin. With letter of 5 March 2004 the Austrian authorities forwarded the new internal rules, issued by AMA Marketing and authorised by the Austrian Federal Ministry of Agriculture, Forestry, Environmental Protection and Hydrological resources (BMLFUW), that govern the granting of these labels. According to these rules the labels could be granted to all products, whether Austrian or from other Member States, that fulfil the quality requirements. Furthermore, the Austrian authorities undertook to adapt the AMA Act of 1992 which was amended by law with effect from July 2007. Since that date, paragraph 21a(1) of the AMA Act no longer contained a reference to ‘national’ products (69).

(162) Therefore, while the period after 30 June 2007 raises no particular problems regarding the origin of the products and the beneficiaries of these labels or measures, a more detailed analysis is necessary for the period before that date. Due to the specificities of the different measures comprised in this scheme and to the different importance of the reference to the national origin, a separate analysis for each measure is necessary.

(163) As regards the quality label, as of January 2000, the norms implementing the AMA Act (Regulativ zur Verwendung des AMA-Gütesiegels für Lebensmittel) did not contain a reference to national products but covered all products regardless of their provenance. Article 23 on the declaration of origin explicitly refers to a region (e.g. Tirol or Bavaria) or a country (e.g. Austria, France) as the origin of the product, thereby indicating that any region/country could be named as the origin of the products. The claim that the quality label was available only to national (i.e. Austrian) products must be dismissed for the period after this date.

(164) Furthermore, all provisions regarding the origin of the product contain the following definition of ‘native/national’ (heimisch): ‘In these guidelines the term “native/national” refers to the region specified as the origin of the product’ (‘Wird in diesen Richtlinien der Begriff “heimisch” verwendet, ist darunter die im Herkunftsanteil des Zeichens angeführte Region zu verstehen.’) (70) Again, this indicates that the reference to ‘national products’ used in the implementing acts does not refer only to Austrian products but any region could be used as origin.

(165) A bio label does per se refer primarily to the special quality requirements of a product. The respective labels under the scheme had the reference to BIO as their main message and were open to all products, irrespective of their origin. The latter could only be mentioned as a subsidiary message.

(166) As regards the aid for quality products, this was awarded for the development of quality assurance schemes, quality controls and controls for organic products (recital 98). Such measures are also per se not limited to products of a particular national origin.

(167) Aid for generic advertising does not raise issues regarding the origin of those products, as the campaigns advertised or referred to a product in a purely generic matter making no reference whatsoever to origin.

8.2. APPLICABLE RULES

(168) Under Article 107(3)(c) of the TFEU, aid to facilitate the development of certain economic activities or of certain economic areas may be considered to be compatible with the common market, where such aid does not adversely affect trading conditions to an extent contrary to the common interest.

(169) According to the Commission notice on the determination of the rules applicable to the assessment of unlawful aid (71), any unlawful aid within the meaning of Article 1(f) of Regulation (EC) No 659/1999 is to be appraised in accordance with the rules applicable at the time the aid was granted.

(170) Between 1 January 2000 and 31 December 2006 the 2000-2006 Guidelines applied. With effect from 1 January 2007, the Community guidelines for State aid in the agricultural and forestry sector 2007-2013 (72) (hereafter: the 2007-2013 Guidelines) were applicable according to their point 194.

(171) In this respect it is to be noted that according to point 196 of the 2007-2013 Guidelines, Member States had a transitional period until 31 December 2007 to bring existing aid schemes in line with the provisions of the Guidelines. The definition of existing aid is stipulated in Article 1(b) of Regulation (EC) No 659/1999. According to Article 1(b)(ii), which applies to the case at hand, existing aid shall mean authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council.

(172) Aid scheme NN 34A/2000 was indeed approved by the Commission on 30 June 2004. However, in September 2004 the decision was challenged by the complainants before the Court of First Instance (now General Court) which annulled the Commission decision by judgment of 18 November 2009. This judgment was appealed by Austria and the Court of Justice dismissed the appeal and upheld the judgment of the Court of First Instance on 27 October 2011.

(173) The Austrian authorities claim that the scheme at hand constituted existing aid and had to be assessed under the new 2007-2013 Guidelines only as of 1 January 2008. In its submission of 14 September 2012, Austria also refers to the principle of legitimate expectations and argues that the Commission decision was only annulled in 2011.

(174) According to the jurisprudence (73) regarding legitimate expectations, ‘where an action for annulment has been brought, the recipient is not entitled to harbour such assurance so long as the Community court has not delivered a definitive ruling’. Therefore, legitimate expectation cannot be invoked in the case at hand.

(175) As a consequence, the aid scheme NN 34A/2000 could not be qualified as existing aid based on the Commission's decision of 30 June 2004 and therefore the transitional period of point 196 of the 2007-2013 Guidelines does not apply. The aid scheme should have been brought in line with the 2007-2013 Guidelines as of 1 January 2007.

8.3. AID FOR ADVERTISING MEASURES

(176) As regards advertising measures, the compatibility of the aid granted in the period 1 January 1995 to 31 December 2001 must be assessed in the light of the Commission communication concerning State involvement in the promotion of agricultural and fisheries products (74) (hereafter: the 1986 Communication) and the Framework for national aid for the advertising of agricultural products and certain products not listed in Annex II to the EEC Treaty, excluding fishery products (75) (hereafter: the 1987 Advertising Framework).

(177) Aid granted as from 1 January 2002 is to be assessed in the light of the Community guidelines for State aid for advertising of products listed in Annex I to the EC Treaty and of certain non-Annex I products (hereafter: the 2001 Advertising Guidelines) (76).

(178) When assessing State aid for the advertising of agricultural products granted after 1 January 2007 the Commission applies Section VI.D of the 2007-2013 Guidelines.

8.3.1. SCOPE OF ADVERTISING

(179) The 1987 Advertising Framework applies to advertising, defined as any operation using the media (such as press, radio, TV or posters) which is designed to induce consumers to buy the relevant product. It excludes from its scope promotion operations in the broader sense, such as the dissemination to the general public of scientific knowledge, the organisation of trade fairs or exhibitions, participation in these and similar public relations exercises, including surveys and market research (77).

(180) The scope of the 2001 Advertising Guidelines is in principle the same as the one of the 1987 Advertising Framework described above, however with some differences. The first substantive change concerns the fact that economic operators were added as potential addressees of advertising (78). The second change concerns the fact that the definition of advertising was enlarged to encompass advertising activities (such as the distribution of material for that purpose) aimed at consumers at the point of sale (79).

(181) The scope of Section IV.D of the 2007-2013 Guidelines is identical with the scope of the 2001 Advertising Guidelines (80).

(182) Both the 1987 Advertising Framework and the 2001 Advertising Guidelines apply to advertising activities but not to promotion activities. Aid for the latter category is classified as technical aid for which specific rules apply.

(183) In the present case aid was granted towards advertising campaigns using different media and other means of publicity. The advertising campaigns concerned — the bio and quality labels, — generic products, and — advertising outside Austria.

(184) From the information submitted by the Austrian authorities, it can be concluded that the aim of the measures was to induce consumers to buy the relevant product (see recitals 75 and 94). Therefore, the above measures fall under the scope of advertising and have to be analysed in the light of the applicable rules.

8.3.2. ADVERTISING AID IN THE PERIOD 1 JANUARY 1995 TO 31 DECEMBER 2001

Conditions for compatibility

(185) The compatibility of the aid granted prior to 1 January 2002 must be assessed in the light of the 1986 Communication and the 1987 Advertising Framework (recital 176).

General conditions

(186) Point 2.2 of the 1987 Advertising Framework prohibits aid for advertising related to particular firms.

(187) Point 3 stipulates the condition that the advertising should concern at least one of the following categories (positive criteria): — surplus agricultural products, — new products or replacement products not yet in surplus, — the development of certain regions, — the development of small and medium-sized undertakings, or — the advertising of high-quality products and health foods.

(188) Finally, according to point 4 of the 1987 Advertising Framework, aid granted under the abovementioned framework must not exceed the amount which the sector itself has committed to a given advertising campaign, which means that a maximum aid intensity of 100 % may be allowed but only if the trade has contributed at least 50 % of the cost, either through voluntary contributions or through the collection of parafiscal levies or compulsory contributions. Therefore, a maximum aid intensity of 100 % is allowed.

Infringement of Article 30 of the EEC

(189) Both point 2 of the 1986 Communication and point 2.1 of the 1987 Advertising Framework (81) stress the fact that aid for advertising cannot be considered compatible with the common market if the promotion material infringes Article 30 of the EEC Treaty (now Article 34 TFEU).

(190) According to point 2.1 of the 1986 Communication, generic promotional campaigns making no reference to the origin of the product, export promotional campaigns organised in other Member States as well as campaigns on the home market promoting specific qualities or varieties of products which make no specific references to the national origin of the product other than which may be evident from the references made to the qualities or varieties concerned or to the normal designation of the product, do not infringe Article 34 TFEU.

(191) By contrast, according to point 2.2 of the 1986 Communication the following campaigns clearly infringe Article 30 of the EEC Treaty (now Article 34 TFEU): promotional campaigns which advise consumers to buy national products solely because of their national origin or promotional campaigns intended to discourage the purchase of products from other Member States or disparage those products in the eyes of the consumer (negative promotion).

(192) Further, point 2.3 of the 1986 Communication stipulates that promotional campaigns on a Member State's home market, because of the references made to the national origin of the products, and unless certain restraints are observed, may be open to objection under Article 30 of the EEC Treaty (now Article 34 TFEU).

(193) Pursuant to point 2.3.1 of the 1986 Communication, promotional campaigns drawing attention to the varieties or qualities of products produced within a Member State are not in practice limited to national or regional specialties and frequently draw attention to the particular qualities of products produced within a Member State and the national origin of the products, even though those products and their qualities are similar to products produced elsewhere. If undue emphasis is placed on the national origin of the product in such promotional campaigns, there is a danger of breach of Article 30 of the EEC Treaty (now Article 34 TFEU).

(194) The 1986 Communication therefore requested Member States to ensure particularly that the following guidelines were strictly respected: — identification of the producing country by word or symbol might be made providing that a reasonable balance between references, on the one hand, to the qualities and varieties of the product and, on the other hand, its national origin is kept, — the references to national origin should be subsidiary to the main message conveyed to consumers by the campaign and not constitute the principal reason why consumers are being advised to buy the product, — qualities of the products which it was permissible to mention included taste, aroma, freshness, maturity, value for money, nutritional value, varieties available, usefulness (recipes, etc.). Conversely, to be avoided were superlatives such as ‘the best’, ‘the tastiest’, ‘the finest’ and expressions such as ‘the real thing’ or promotional campaigns which, because of the mentioning of the national origin, result in the product promoted being compared with the products of other Member States. References to quality control should only be made where the product was subjected to a genuine and objective system of control of its qualities.

Assessment

(195) In a legal opinion attached to the submission of information from 25 February 2015 the Austrian authorities claim that the infringement of Article 30 of the EEC Treaty (now Article 34 TFEU) needs to be assessed in a ‘historical perspective’ and that in the period 1995 to 2002 there was no Court case in which the text and the graphic message of a label was deemed to infringe Article 30 of the EEC Treaty. In the Commission's view this argument misses the point. As shown above, both the 1986 Communication (82) and the 1987 Advertising Framework contained express and detailed guidelines for Member States on how to design their measures in order to avoid breaches of Article 30 of the EEC Treaty.

(196) Based on the information available to the Commission for the period before 2002, it was not possible to assess the compatibility of the advertising measures with the above rules at the time of the opening decision. Therefore, the Austrian authorities were invited to provide the necessary information in respect of the above conditions.

(197) The reply provided by the Austrian authorities on 14 September 2012 did not contain sufficient information to allow a compatibility assessment (the Austrian authorities just referred to the annual reports for the years 1995 to 2001). A further request for information on these points was therefore sent on 19 February 2014 and Austria provided a reply on 5 May 2014.

(198) In the latter, the Austrian authorities stated that the advertising campaigns concerned surplus agricultural products and/or the advertising of high quality products. Therefore the positive criteria set out in point 3 of the 1987 Advertising Framework were complied with.

(199) According to the information provided by the Austrian authorities, the advertising did not make any reference to particular firms.

(200) As regards the maximum aid intensity, the levies from the sector constituted more than 50 % of the aid amount (see also recitals 43 and 56). Therefore, the criterion of point 4 of the 1987 Advertising Framework regarding the aid intensity is fulfilled.

(201) In the opening decision the Commission expressed doubts as regards a potential infringement of Article 30 of the EEC Treaty (now Article 34 TFEU). In the preliminary view of the Commission the reference to the national origin in the quality label did not appear to be subsidiary (see recital 65). Moreover, the Commission noted that in many advertising materials, the reference to the origin of the product was not limited to the quality label but appeared also elsewhere in the advertisement (see recital 83).

(202) Therefore, in the opening decision, the Austrian authorities were asked to describe the appearance of the quality and the bio labels in the period 1995-2001 and to provide representative examples of promotion material in which the labels were used.

(203) On 14 September 2012, the Austrian authorities replied that the annual reports on State aid provided for the years 1995-2004 already contained this information. By letter of 19 February 2014, the Commission replied that this information was not sufficient for a compatibility analysis and asked for a detailed account (i.e. notification sheets) on the basis of the applicable rules at the time of the measure. This assessment was provided with the reply of 5 May 2014.

(204) The specific compatibility criteria for the different types of advertising are analysed below.

Aid for generic advertising

(205) As regards the reference to particular firms in some advertising campaigns (recital 90, the Commission notes that according to point 2.2 of the 1987 Advertising Framework, aid for advertising related to particular firms is prohibited.

(206) In their submission of 14 September 2012, the Austrian authorities argued that the firms mentioned had contributed to some of the costs of the campaign (Druck und Werbeeinschaltung). Nevertheless, such campaigns referring to particular firms cannot be cleared under the State aid rules (point 2.2 of the 1987 Advertising Framework). The fact that the firms contributed partially to the costs related to the campaign does not change this assessment.

(207) From the available information it appears that some of the generic advertising campaigns explicitly referred to the origin of the product (i.e. Austria) (see the examples provided in recitals 84 and 90).

(208) Therefore, the measures did not comply with points 2.1 (83), 2.2 of the 1987 Advertising Framework and infringed Article 30 of the EEC Treaty (now Article 34 TFEU). Therefore, the Commission considers the aid for advertising measures in the period 1 January 1995 to 31 December 1999 referring to the origin of the products or to particular companies to be incompatible with the common market (84).

(209) As regards the period 1 January 2000 to 31 December 2001 the advertising campaigns referred only to the specific qualities or varieties of products with no specific references to their national origin.

(210) Therefore, for this latter period the campaigns did not infringe Article 30 of the EEC Treaty and thus complied with the 1987 Advertising Framework. Therefore, the Commission considers them to be compatible with the common market.

Aid for the quality label

(211) In their reply of 14 September 2012, the Austrian authorities stated that for the quality label, the same labels as the ones approved in the Commission's decision in case N 589/2008 were used. Therefore, the Austrian authorities concluded that the reference to the national origin had a subordinated role.

(212) The Commission does not agree with the comments by the Austrian authorities. As shown above (recital 65), another logo was used for the quality label in the period 1995 to 1999. In this logo the reference to the origin is not subsidiary to the quality message of the logo. Both the visual message (Austrian flag) and the text used indicate Austria as the main message.

(213) Therefore, point 2.3.1 of the 1986 Communication which required that references to national origin should be subsidiary to the main message conveyed to consumers by the campaign and not constitute the principal reason why consumers are being advised to buy the product was not complied with. Therefore, the Commission considers the aid for the quality label for the period 1 January 1995 to 31 December 1999 to be incompatible with the common market.

(214) As regards the period 1 January 2000 to 31 December 2001, the Commission considers that the new logos, which were the same as those assessed in the Commission's decision in case N 589/2008, comply with the conditions of the 1987 Advertising Framework and thus considers the related aid compatible with the common market.

Aid for the bio label

(215) In the advertising measures for the bio logo, as shown above at recital 65, the same logos were used as in the period after 2002.

(216) As this type of advertising draws the attention to the varieties or qualities of products produced within a Member State, they fall under point 2.3.1 of the 1986 Communication which required that no undue emphasis had to be placed on the national origin of the product.

(217) One of two versions of the logo did not make any reference to the origin of the products. The other one indicated the origin of the product as a secondary message. The former did not raise any problems as regards a potential breach of Article 30 of the EEC Treaty (now Article 34 TFEU). As for the latter, the conditions of point 2.3.1 of the 1986 Communication were met because: — the logo kept a reasonable balance between a reference, on the one hand, to the qualities of the product (i.e. bio) and, on the other hand, to the identification of the producing country by word or symbol, — the reference to the national origin was subsidiary to the main message conveyed to consumers and did not constitute the principal reason why consumers were being advised to buy the product, — the qualities of the products referred to objective qualities of the product and no superlatives resulting in the product promoted being compared with the products of other Member States were used, — references to quality control were made where the product was subjected to a genuine and objective system of control of its qualities through AMA.

(218) Therefore, the advertising aid for the bio logo for the period 1 January 1995 to 31 December 2001 complied with the conditions of the 1986 Communication. Therefore, the Commission considers that aid to be compatible with the common market.

Advertising outside Austria

(219) The advertising campaigns organised outside Austria made no specific references to the national origin of the product other than the one which may be evident from the references made to the qualities or varieties concerned or to the normal designation of the product. These campaigns were thus in line with point 2.1 of the 1986 Communication and did not infringe Article 30 of the EEC Treaty (now Article 34 TFEU).

(220) Therefore, the aid for advertising outside Austria for the period 1 January 1995 to 31 December 2001 complied with the conditions of the 1986 Communication. Therefore, the Commission considers that aid to be compatible with the common market.

8.3.3. ADVERTISING AID IN THE PERIOD 1 JANUARY 2002 TO 31 DECEMBER 2006: QUALITY AND BIO LABELS

(221) For the period 1 January 2002 to 31 December 2006 aid for advertising activities had to comply with the conditions set out in the 2000-2006 Guidelines. According to point 18 of the 2000-2006 Guidelines, measures for the promotion and advertising of agricultural products had to be assessed in accordance with the 1987 Advertising Framework.

(222) From 1 January 2002 onwards the 2001 Advertising Guidelines were applicable and replaced the 1986 Communication and the 1987 Advertising Framework (points 69, 75 of the 2001 Advertising Guidelines). The Commission will therefore base its assessment for the period 1 January 2002 to 31 December 2006 on the 2001 Advertising Guidelines.

(223) According to point 12 of the 2001 Advertising Guidelines, aid granted for the advertising of agricultural and other products, in order to be compatible with the common market, should not interfere with trade to an extent contrary to the common interest (negative criteria), and should facilitate the development of certain economic activities or of certain economic areas (positive criteria).

Negative criteria

(224) Point 18 of the 2001 Advertising Guidelines laid down that no aid could be granted for advertising campaigns that infringed Article 28 EC (now Article 34 TFEU) prohibiting quantitative restrictions on imports and all measures having equivalent effect between Member States.

(225) The aid could not be granted for advertising relating directly to the products of one or more particular firm or firms. If the conduct of publicly financed advertising activities was entrusted to private firms such firms had to be chosen on market principles (points 29 and 30 of the 2001 Advertising Guidelines).

(226) Furthermore, campaigns could not contravene secondary Community legislation and in particular had to comply with the provisions of Directive 2000/13/EC (points 25 to 28 of the 2001 Advertising Guidelines).

Positive criteria

(227) Points 31 and 32 of the 2001 Advertising Guidelines stated that, in order to qualify for a derogation under Article 87(3)(c) EC (now Article 107(3)(c) TFEU), advertising had to concern surplus products or underexploited species, new products or replacement products not yet in surplus, high quality products, the development of certain regions or the development of SMEs.

(228) Chapter 4 of the 2001 Advertising Guidelines detailed the application of the above mentioned positive criteria to particular types of advertising, namely to aid for advertising where origin is part of the message (section 4.1) and advertising aid for quality products (section 4.2).

Advertising where origin is a part of the message

(229) According to point 23 of the 2001 Advertising Guidelines, identification of the producing country by word or by symbol could be made providing that a reasonable balance was struck between references to, on the one hand, qualities and varieties of the product and, on the other hand, its national origin. The references to national origin had to be subsidiary to the main message conveyed to consumers and could not constitute the principal reason why consumers were being advised to buy the product. Advertising which mentioned the (regional) origin of the product as a subsidiary message was deemed not to infringe Article 28 EC (now Article 34 TFEU). In order to assess whether the origin was indeed a subsidiary message, the Commission would take into account the overall importance of text and/or symbol, including pictures and general presentation, referring to origin and the importance of text and/or symbol referring to the unique selling point of the advertisement, i.e. the part of the advertising message which does not focus on origin (points 40 and 41 of the 2001 Advertising Guidelines).

Advertising for quality products

(230) When aid was granted towards products meeting special quality requirements it had to be open to all products produced in the Community irrespective of their origin. Member States were also required to recognise the results of comparable controls carried out in other Member States (point 49 of the 2001 Advertising Guidelines).

Advertising for products of organic farming, in particular

(231) According to point 55 of the 2001 Advertising Guidelines, aid could only be authorised when the products bearing indications referring to organic farming methods satisfied the requirements of Regulation (EEC) No 2092/91. All the producers and processors of products of organic farming had to be subject to the system of controls laid down in the Regulation.

Assessment

(232) In applying the above provisions to the advertising measures for the quality and bio label in the period 1 January 2002 to 31 December 2006 the Commission comes to the following conclusions:

(233) The quality label and one of the two versions of the bio label (see recital 64) contained a reference to the origin of the product, but this message may be considered secondary to the main message concerning the (organic) quality of the product. The reference to the origin of the product had a subordinate position both in the graphic message (background) and in the text of the logo.

(234) Regarding the design of the labels the Commission notices that the central space of the labels was occupied by the field in which the text ‘AMA Gütesiegel’ or ‘BIO’ dominated and the origin of the product was indicated in considerably smaller letters. The side fields were presented in national colours (e.g. red and white for Austria) without any additional symbols identifying the production country. The central field not only occupied the visually dominant space in the labels but constituted ca. 65 % of the total width of the label (see recital 64). The Austrian authorities have further specified that in all advertising relating to both labels the product quality was the main message and the origin of the product, where mentioned, was only a secondary message (see recital 79).

(235) According to the Austrian authorities, the bio label was only granted to organic products satisfying the criteria laid down in Regulation (EEC) No 2092/91 (see recital 69).

(236) The Austrian authorities have given assurances that the provisions of Directive 2000/13/EC were complied with in the subsidised advertising (see recital 68).

(237) The advertising did not relate to the products of one or more particular firm or firms. The Austrian authorities have specified that in advertising at a point of sale no named firms or products were advertised and that the owner of the point of sale did not benefit from the aid (see recital 78).

(238) The Austrian authorities have specified that all advertising activities funded by AMA Marketing were carried out by private firms selected by means of a public tender (see recital 52).

(239) Further, according to the Austrian authorities, the use of the quality label was open to all products produced in the Union if they met the special requirements for the use of the label. These special requirements either concerned product quality or were limited to ensuring the indicated geographical origin of the product. In any case the special requirements could be fulfilled irrespective of the geographical origin of the product (see recital 161).

(240) In the opening decision the Commission pointed out that it did not have information regarding the question whether equivalent controls carried out in other Member States were recognised. In their submission of 14 September 2012, the Austrian authorities confirmed that such controls were recognised and provided supporting evidence for this.

(241) Although the Austrian authorities confirmed that as from 2002 the quality and the bio label were open to all products regardless of their origin, in the opening decision the Commission expressed doubts since the reference to national products in the main legal basis for the measures, the AMA Act, was abolished only in 2007 (see recital 161).

(242) In their submissions, the Austrian authorities provided the new internal rules according to which the labels were open to all products as well as data showing that a number of non-Austrian products had indeed obtained the labels after 2001. They also confirmed again that since 2002 the rules were applied to all products irrespective of their origin.

(243) In the opening decision, the Commission noted that it was not clear whether the new AMA internal rules had been put into effect already as from 26 September 2002 or whether there was a transitional period after 26 September 2002 during which aid continued to be granted according to the old rules. In their submission of 14 September 2012, the Austrian authorities declared that there was no such transitional period.

(244) In recital 175 of the opening decision, the Commission stated that it did not have enough information to assess whether the State aid rules are applicable to the co-financed bio-label promotion measures mentioned in recital 80 above. To that end the Austrian authorities were invited to provide more information on the State aid clearance of the measures as well as about the duration of the programming period. In their submission of 14 September 2012, the Austrian authorities indicated that the bio-label promotion measures were part of the Austrian co-financed information and promotion programme for bio products.

(245) In their reply of 14 September 2012 the Austrian authorities also stated the following: In the period 2002-2008 (20 September 2002-15 September 2005) a co-financed information and promotion programme for organic products was run. This programme had been approved by Commission Decision C (2002) 3116 of 22 August 2002 (85). Furthermore, Commission Decision C (2007) 3299 of 10 July 2007 approved another 3-year programme for the bio label (1 October 2007-30 September 2010) (86).

(246) For the reasons stated above the aid for advertising measures carried out in the period 1 January 2002 to 31 December 2006 complied with the 2001 Advertising Guidelines and thus the 2000-2006 Guidelines. Therefore, the Commission considers that this aid was compatible with the common market.

8.3.4. ADVERTISING CAMPAIGNS OUTSIDE AUSTRIA AND GENERIC ADVERTISING IN AUSTRIA, 2002-2004 (87)

(247) Advertising campaigns could be authorised if they were organised directly or indirectly by one Member State on the market of another Member State or on the home market of the supporting Member State and advertise the product in a purely generic manner making no reference whatsoever to its national origin (point 19(a)-(b) of the 2001 Advertising Guidelines).

(248) According to the 2001 Advertising Guidelines the Commission took a favourable view of advertising campaigns that were undertaken in order to introduce consumers to the agricultural and other products of a particular Member State or region. The primary focus of such campaigns could be the origin of the product provided the campaign was undertaken outside the Member State or region in which the agricultural and other products were produced. The campaigns had to be limited to presenting the objective characteristics of the products concerned and should in principle not include subjective claims about the quality of the products (points 35-39 of the 2001 Advertising Guidelines).

(249) On the basis of the information available at the time of the opening decision for the period 2002-2004 regarding generic advertising and advertising outside Austria (see sections 2.7.1.2 and 2.7.1.3 of the opening decision) it was not possible to assess the compatibility of the measures with the conditions set out in points 19(b), 29, 30 and 39 of the 2001 Advertising Guidelines.

(250) Therefore, in the opening decision, the Austrian authorities were invited to provide the necessary information in respect of the above provisions.

Positive criteria

(251) Advertising campaigns outside the Member State and generic advertising within the Member State had to comply with the positive criteria of the 2001 Advertising Guidelines (see recitals 227 and 228).

(252) In addition, point 47 of the 2001 Advertising Guidelines provided that for advertising of products meeting particular quality requirements such products should meet standards or specifications which were clearly higher or more specific than those which were laid down in the relevant Community or national legislation.

(253) Point 60 of the 2001 Advertising Guidelines provided that in the case of aid for advertising, the rate of direct aid should, as a general rule, not exceed 50 % and undertakings from the sector had to contribute at least 50 % of the cost, where the direct aid came from a general purpose government budget. The sector contribution could also come from parafiscal levies or compulsory contributions.

(254) Regarding generic advertising and advertising outside Austria, on the basis of the information available to the Commission at the time of the opening decision for the period 2002-2004 it was not possible to assess the compatibility of the measures with the above rules. Therefore, the Austrian authorities were invited to provide the necessary information in respect of the condition stipulated in point 32 of the 2001 Advertising Guidelines (recital 174 of the opening decision).

(255) In the reply of 14 September 2012 Austria referred to its submission of 13 December 2002. This submission, however, only contains concrete examples and the national legal basis for the measures. Therefore, in its request for information of 19 February 2014 the Commission asked the Austrian authorities to complete the relevant notification forms and to submit them to the Commission. In their reply of 30 April 2014, the Austrian authorities submitted the requested notification forms. However, the information filled in the forms only referre