Case C-345/02

Pearle BV and Others

v

Hoofdbedrijfschap Ambachten

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(State aid – Concept of aid – Collective advertising campaigns in favour of one sector of the economy – Financing by means of a special contribution payable by undertakings in that sector – Action taken by a body governed by public law)

Summary of the Judgment

1. State aid – Planned aid – Notification of the Commission – Extent of the obligation – Notification required to include the method of financing because of its effect on the admissibility of the aid

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

2. State aid – Planned aid – Grant of aid in contravention of the prohibition laid down by Article 93(3) of the Treaty (now Article 88(3) EC) – Duty of the national courts to uphold the rights of the persons concerned – Competence to interpret the concept of aid

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

3. State aid – Concept – Bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign through resources levied on its members and compulsorily earmarked for that campaign – Excluded

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

1. Where the method by which State aid is financed, particularly by means of compulsory contributions, forms an integral part of the aid measure, consideration of the latter by the Commission must necessarily also take into account that method of financing the aid. In such a case, the notification of the aid provided for in Article 93(3) of the Treaty (now Article 88(3) EC) must also cover the method of financing, so that the Commission may consider it on the basis of all the facts. If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible when, if the Commission had been aware of its method of financing, it could not have been so declared.

(see paras 29-30)

2. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the obligations imposed on the Member States by Article 93(3) of the Treaty (now Article 88(3) EC). In order to determine whether a State measure has been introduced contrary to that provision, a national court may have cause to interpret the concept of aid contained in Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC).

(see para. 31)

3. On a proper construction of Articles 92(1) and 93(3) of the Treaty (now Article 88(3) EC), bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign organised for the benefit of its members and decided on by them, through resources levied from those members and compulsorily earmarked for the funding of that campaign, do not constitute an integral part of an aid measure within the meaning of those provisions and it was not necessary for prior notification of them to be given to the Commission since it has been established that that funding was carried out by means of resources which that trade association, governed by public law, never had the power to dispose of freely.

(see para. 41, operative part)