Judgment of the Court (First Chamber) of 13 January 2005 in Case C-174/02 (reference for a preliminary ruling by the Hoge Raad der Nederlanden): Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën (State aid — Article 93(3) of the EC Treaty (now Article 88(3) EC) — Planned aid — Prohibition on the implementation of planned measures before the Commission's final decision — Scope of the prohibition if the aid consists of an exemption from a tax — Persons who may rely on an infringement)
Date: 2005-03-05
Institutions: Court of Justice
Subjects: competition, economic support, frontier region, interpretation of the law, tax exemption, tax law

5.3.2005

EN

Official Journal of the European Union

C 57/3

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-145/02 (reference for a preliminary ruling by the
Bundesverwaltungsgericht): Land Nordrhein-Westfalen v
Denkavit Futtermittel GmbH (1)

(Free movement of goods — Directive 70/524/EEC — Arti-
cles 28 EC and 30 EC — Additives — Harmonisation of
national provisions relating to the vitamin D content of
animal feedingstuffs — Legislation of a Member State prohi-
biting the importation of animal feedingstuffs which have
been lawfully manufactured in another Member State and the
vitamin D3 content of which exceeds that authorised in that
first State)

(2005/C 57/04)

(Language of the case: German)

In Case C-145/02: reference to the Court under Article 234 EC
from the Bundesverwaltungsgericht
(Federal Administrative
Court)(Germany), made by decision of 31 January 2002,
received at the Court on 18 April 2002, in the proceedings
between Land Nordrhein-Westfalen and Denkavit Futter-
mittel GmbH – the Court (First Chamber), composed of P.
Jann, President of the Chamber, A. Rosas (Rapporteur) and
S. von Bahr,
Judges; A. Tizzano, Advocate General; M.-F.
Contet, Principal Administrator, for the Registrar, has given a
judgment on 13 January 2005, in which it has ruled:

The combined provisions of Articles 12 and 19 of Council Directive
70/524/EEC of 23 November 1970 concerning additives in feeding-
stuffs, as amended by Council Directive 84/587/EEC of 29 November
1984, must be interpreted as precluding a measure by which a
Member State prohibits the marketing within its territory of a supple-
mentary feedingstuff lawfully manufactured in another Member State
in accordance with Article 12(1) of that directive on grounds of its
vitamin D level.

(First Chamber)

of 13 January 2005

in Case C-174/02 (reference for a preliminary ruling by the
Hoge Raad der Nederlanden): Streekgewest Westelijk
Noord-Brabant v Staatssecretaris van Financiën (1)

(State aid — Article 93(3) of the EC Treaty (now Article
88(3) EC) — Planned aid — Prohibition on the implementa-
tion of planned measures before the Commission's final deci-
sion — Scope of the prohibition if the aid consists of an
exemption from a tax — Persons who may rely on an infrin-
gement)

(2005/C 57/05)

(Language of the case: Dutch)

In Case C-174/02: reference to the Court under Article 234 EC
from the Hoge Raad der Nederlanden (Netherlands), made by
decision of 8 March 2002, received at the Court on 13 May
2002,
in the proceedings between Streekgewest Westelijk
Noord-Brabant and Staatssecretaris van Financiën – the Court
(First Chamber) composed of P. Jann, President of the Chamber,
A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rappor-
teur), Judges; L.A. Geelhoed, Advocate General, M.-F. Contet,
Principal Administrator, gave a judgment on 13 January 2005,
in which it ruled:

1. The last sentence of Article 93(3) of the EC Treaty (now the last
sentence of Article 88(3) EC) must be interpreted as meaning that
it may be relied on by a person liable to a tax forming an integral
part of an aid measure levied in breach of the prohibition on
implementation referred to in that provision, whether or not the
person is affected by the distortion of competition resulting from
that aid measure.

2. The last sentence of Article 93(3) of the Treaty must be interpreted
as meaning that the prohibition in it applies to a tax only if the
revenue from it is hypothecated to the aid measure at issue. The
fact that the aid is granted in the form of a tax exemption or that
the loss of revenue due to that exemption is, for the purposes of
the budget estimates of the Member State in question, offset by an
increase in the tax are not in themselves sufficient to amount to
such hypothecation.

(1) OJ C 144 of 15.06.2002.

(1) OJ C 169 of 13.07.2002.