Case C-345/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 27 September 2002 in the proceedings between 1. Pearle B.V., 2. Hans Prĳs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and Hoofdbedrĳfschap Ambachten
Date: 2002-11-23
Institutions: Court of Justice
Subjects: State aid, advertising, interpretation of the law, public institution, tax system

23.11.2002

EN

Official Journal of the European Communities

C 289/13

The applicant claims that the Court should:

— declare that, when the municipal community of Le Mans
awarded a contract with the purpose of assisting the
person responsible for the Chauvinière sewage treatment
works to carry out a study into it without previously
publishing a tender notice in the Official Journal of the
European Communities, the French Republic failed to
fulfil its obligations under Directive 92/50/EEC (1) and in
particular Article 15(2) thereof;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the tender for the study
into the works which concerned services other than those
involved in the call for proposals launched by the notice
published in the Official Journal of the European Communities
on 30 November 1996 should have been published and
should have been the subject of a new tender in compliance
with the obligations laid down by Directive 92/50/EEC. The
direct award of that contract to the successful tenderer of the
call for proposals was unauthorised. Nor can it be justified on
the basis of a reference in the notice of 30 November 1996
according to which ‘the tenderer whose solution is accepted in
the context of the competition for proposals may be invited to
become involved in the implementation of his idea as part of
a study intended to ... assist the person responsible for the
works’.

( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (JO L 209 of 24.7.1992, p. 1).

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 27 September
2002 in the proceedings between 1. Pearle B.V., 2. Hans
Prijs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and
Hoofdbedrijfschap Ambachten

(Case C-345/02)

(2002/C 289/22)

Reference has been made to the Court of Justice of the
the Hoge Raad
European Communities by judgment of

der Nederlanden (Supreme Court of the Netherlands) of
27 September 2002, received at
the Court Registry on
30 September 2002, for a preliminary ruling in the proceed-
ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
the following questions:

(1)

Is a scheme such as that under consideration, in which
levies are imposed to finance collective advertising cam-
paigns, to be regarded as (part of a measure of) aid within
the meaning of Article 92(1) of the EC Treaty, and must
the plans to implement it be notified to the Commission
under Article 93(3) of the EC Treaty? Does that apply
only to the benefit derived from the scheme, in the form
of the organisation and provision of collective advertising
campaigns, or does it also apply to the method of
financing it, such as a bye-law instituting levies and/or
the decisions imposing levies based thereon? Does it
make any difference whether the collective advertising
campaigns are offered to (undertakings in) the same
business sector as that on which the levy decisions in
question are imposed? If so, what difference does it make?
Is it relevant in that connection whether the costs incurred
by the public body are offset in full by the earmarked
levies payable by the undertakings benefiting from the
service, so that the benefit derived costs the public
authorities, on balance, nothing? Is it relevant in that
connection whether the benefit from the collective adver-
tising campaigns is distributed more or less evenly across
the field of activity concerned and whether the individual
establishments within the branch are also deemed, on
balance, to have derived a more or less equal benefit or
profit from those campaigns?

(2) Does the obligation to notify under Article 93(3) apply
to any aid or only to aid which satisfies the definition in
Article 92(1)? In order to avoid its obligation to notify,
does a Member State have free discretion to determine
whether aid satisfies the definition in Article 92(1)? If so,
how much discretion? And to what extent can such
free discretion affect
the obligation to notify under
Article 93(3)? Or is it the case that the obligation to
notify ceases to apply only if it is beyond reasonable
doubt that no aid is involved?

(3)

it

is involved, must

If the national court concludes that aid within the
then
meaning of Article 92(1)
consider the ‘de minimis’ rule, as formulated by the
Commission in a notice published in OJ 1992 C 213 (and
subsequently in OJ 1996 C 68), when assessing whether
the measure in question is to be regarded as aid which
ought to have been notified to the Commission under
Article 93(3)? If so, must that ‘de minimis’ rule also be
applied with retroactive effect to aid which was granted
before the publication of the rule, and how must that ‘de
minimis’ rule be applied to aid such as annual collective
advertising campaigns which benefit an entire branch of
industry?

C 289/14

EN

Official Journal of the European Communities

23.11.2002

(4) Does it follow from the grounds of the judgment in Case
C-39/94 SFEI v La Poste [1996] ECR I-3547, for the
purposes of the practical effect of Article 93(3), that the
national court must annul both the bye-laws and the levy
decisions imposed under those bye-laws and that that
court must order the public body to repay the levies,
even if that is precluded by the rule developed in the
Netherlands case-law concerning the formal legal force of
the levy decisions? Is it relevant
in that regard that
repayment of the levies does not in practice eliminate the
advantage which the field of activity and the individual
undertakings in the branch obtained through the collec-
tive advertising campaigns? Does Community law allow
repayment of the earmarked levy not to take place, either
wholly or in part, if, in the opinion of the national court,
the field of activity or the individual undertakings would
be placed at an unfair advantage in connection with the
circumstance that the advantage obtained as a result of
the advertising campaigns cannot be returned in kind?

(5)

In case of failure to notify an aid as laid down in
Article 93(3), can a public body rely, in order to avoid an
obligation to refund the aid, on the abovementioned rule
of formal legal force of the levy decision if the person to
whom that decision was addressed was not aware, at the
time of the adoption of that decision and during the
period within which it could have been challenged in
administrative proceedings, that the aid of which the levy
forms part had not been notified? May an individual
the authorities have
assume in this connection that
fulfilled their obligations to notify aid under Article 93(3)
of the EC Treaty?

Action brought on 30 September 2002 by the Com-
mission of the European Communities against the Grand
Duchy of Luxembourg

(Case C-346/02)

(2002/C 289/23)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 30 September 2002 by the Commission of
the
European Communities, represented by C. Tufvesson and
J.-F. Pasquier, acting as Agents, with an address for service in
Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that, by introducing and maintaining in force a
system of bonuses and penalties having automatic and
compulsory repercussions on premium rates and apply-
insurance contracts concluded on
ing to all motor
Luxembourg territory by natural persons, without any
distinction being drawn between insurance companies
based in the Grand Duchy of Luxembourg and insurance
undertakings operating there through a branch or by the
provision of services, contrary to the principle of freedom
to set premium rates and elimination of prior or system-
atic controls on premium scales and contracts, as estab-
lished by Articles 6(3), 29 and 39 of Directive 92/49/
EEC (1), the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission does not deny that it is open to Member
States to establish a scale taking into account the claims record
of insured persons or even a uniform system of bonuses and
penalties, but it does oppose any scale or system accompanied
by tariff elements which has automatic and compulsory
repercussions on premium rates, contrary to the principle of
freedom to set rates. That is the position with the Luxembourg
system as regards policyholders who are natural persons.
Whilst the reference premium may be freely fixed by the
parties to the contract of insurance, the Luxembourg rules
attach to certain events affecting the life of the contract
consequences having a compulsory and automatic effect on
the amount of
that
price competition does not come into play as regards the
consequences of those events. Similarly, insurers operating on
the territory of the Grand Duchy of Luxembourg do not have
the right to place the insured person, at the time of entering
into the system, on another level of the scale or to choose
other methods involving the application of other criteria for
reducing or increasing premiums or some other scale reflecting
the accidents occurring over the course of a year or over some
other period of time.

the premium rates, with the result

It is for the Member State imposing the restriction to show
that the measure is justified by the public interest, objectively
necessary, appropriate and proportionate to the objective
pursued, and that it does not needlessly duplicate the rules
applying in the Member State where the service provider is
established. The Luxembourg Government has not shown this.
In any event, as regards consumer protection, there are other
systems which produce the same result without impinging on
rate-setting policy, in particular the organisation of a scheme
involving the systematic publication of the rate-setting policies
pursued by the undertakings concerned in accordance with a
common scale of accident claims. Moreover, it is not apparent