Case T‑538/11

Kingdom of Belgium

v

European Commission

‛State aid — Public health — Aid granted to finance transmissible spongiform encephalopathies (TSE) screening tests in bovine animals — Decision declaring the aid partly compatible and partly incompatible with the internal market — Action for annulment — Acts adversely affecting the applicant — Admissibility — Concept of advantage — Concept of selectivity’

Summary — Judgment of the General Court (First Chamber), 25 March 2015

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for claims invoked in support of a plea

Actions for annulment — Subject-matter — Decision based on several grounds, each sufficient to justify its operative part — Decision on State Aid — Pleas relating to an error or other illegality affecting only one of the grounds — Pleas not entailing the annulment of the decision

State aid — Concept — Selective nature of the measure — Grant of an advantage to the beneficiaries — Assessment by comparison with other undertakings in the same Member State and not with undertakings in other Member States

State aid — Concept — Selective nature of the measure — Differentiation between undertakings in a comparable factual and legal situation — Measure benefiting operators in a single sector to the exclusion of others — No justification based on the nature and general structure of the system of charges at issue

State aid — Concept — Grant of an advantage to the beneficiaries — Objective of protecting public health — Irrelevant to classification as a State aid measure

State aid — Concept — State intervention mitigating the burdens normally included in the budget of an undertaking — Charges arising from compliance with national legislation — Cost of obligatory controls concerning the production or marketing of products — Included — Charges relating to the exercise by the State of its powers as a public authority — Irrelevant — Principle that the polluter pays — Irrelevant

State aid — Concept — State intervention in areas which have not been harmonised in the European Union — Included

See the text of the decision. (see paras 47-49, 53)

In State aid matters, intervention by the Member States in areas which have not been harmonised in the European Union is not excluded from the scope of the rules on the monitoring of State aid. To accept the contrary would necessarily deprive Articles 107 TFEU and 108 TFEU of their practical effect. (see paras 65, 67)

In State aid matters, the concept of a charge which is normally borne by the budget of an undertaking covers, in particular, the additional costs which undertakings must bear by virtue of obligations imposed by law, regulation or agreement which apply to an economic activity, such as the costs obligatory controls concerning the production or marketing of products. Moreover, the concept of charges normally borne by the budget of an undertaking is not limited to costs arising from the application of the ‘polluter pays’ principle. The fact that that principle is not applicable, even on the assumption that it is made out, cannot invalidate that finding. In any event, the fact that charges are imposed on undertakings by national legislation, and therefore necessarily relate to the exercise by the State of its powers as a public authority, does not preclude those charges being classified as charges normally borne by the budget of an undertaking. (see paras 76, 77, 85, 96, 104, 105)

Article 107(1) TFEU does not distinguish by reference to the causes or aims of the measures in question, but defines them in relation to their effects. Thus, the objective of protecting public health pursued by the measure at issue, on the assumption that it is correct, is not sufficient to reject the classification as State aid applied by a Commission decision. (see paras 80, 81)

In State aid matters, the selective character of a measure, consisting in introducing a differentiation between undertakings in the matter of charges, is validly established where the Commission finds that operators in a given sector benefit from an advantage that is not available to undertakings in other sectors, because they benefit from tests which they are required to perform before placing their products on the market or trading in them being provided free of charge, whereas undertakings in other sectors do not have that possibility. In addition, the selective nature of a measure must be assessed by reference to all undertakings and not by reference to the undertakings which benefit from the same advantage within the same group. Finally, the fact that beneficiaries of the aid must bear charges undertakings in other sectors do not have to bear, even if established, is insufficient to prove that the differentiation between undertakings introduced by the measure at issue is justified by the nature and general structure of the system of charges in question. (see paras 103, 110, 111, 114-116)

See the text of the decision. (see para. 124)

Where, even in the absence of a flawed consideration concerning the selective character of a State aid measure, the remaining grounds of a decision support the finding that the measure at issue is selective, the error on the Commission’s part cannot call into question the lawfulness of its decision. (see para. 126)