Case C-526/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour de cassation — France) — Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS), (State aid — Articles 87 and 88(3) CE — Tax on direct sales of medicines — Applicable to pharmaceutical laboratories rather than wholesale distributors — Prohibition on implementing a non-notified aid measure — Possibility of pleading that an aid measure is unlawful in order to obtain reimbursement of a charge — Compensation for discharging public service obligations imposed on wholesale distributors — Burden of proof in relation to overcompensation — Detailed rules laid down by national law — Prohibition on making reimbursement of a charge practically impossible or excessively difficult)
Date: 2006-11-18
Institutions: Court of Justice
Subjects: EU law - national law, France, State aid, control of State aid, interpretation of the law, pharmaceutical industry, proof, social security legislation, social-security contribution

C 281/12

EN

Official Journal of the European Union

18.11.2006

Judgment of the Court (Second Chamber) of 7 September
2006 (reference for a preliminary ruling from the Cour de
cassation — France) — Laboratoires Boiron SA v Union de
recouvrement des cotisations de sécurité sociale et d'allo-
cations familiales (Urssaf) de Lyon, assuming the rights
and obligations of the Agence centrale des organismes de
sécurité sociale (ACOSS),

(Case C-526/04) (1)

(State aid — Articles 87 and 88(3) CE — Tax on direct sales
of medicines — Applicable to pharmaceutical
laboratories
rather than wholesale distributors — Prohibition on imple-
menting a non-notified aid measure — Possibility of pleading
that an aid measure is unlawful in order to obtain reimburse-
ment of a charge — Compensation for discharging public
service obligations imposed on wholesale distributors —
Burden of proof in relation to overcompensation — Detailed
rules laid down by national law — Prohibition on making
reimbursement of a charge practically impossible or exces-
sively difficult)

(2006/C 281/18)

Language of the case: French

2. Community law does not preclude the application of rules of
national law which make reimbursement of a mandatory contribu-
tion such as that provided for in Article 12 of Law No 97-1164
subject to proof by the claimant seeking reimbursement that the
advantage derived by wholesale distributors from their not being
liable to pay that contribution exceeds the costs which they bear in
discharging the public service obligations imposed on them by the
national rules and, in particular, that at least one of the conditions
laid down in the judgment in Case C-280/00 Altmark Trans and
Regierungspräsidium Magdeburg [2003] ECR I-7747 is not
satisfied.

However, in order to ensure compliance with the principle of effec-
tiveness,
if the national court finds that the fact of requiring a
pharmaceutical laboratory such as Boiron to prove that wholesale
distributors are overcompensated, and thus that the tax on direct
sales amounts to State aid, is likely to make it impossible or exces-
sively difficult for such evidence to be produced, since inter alia
that evidence relates to data which such a laboratory will not have,
the national court is required to use all procedures available to it
including that of ordering the necessary
under national
law,
in particular the production by one of the
measures of inquiry,
parties or a third party of a particular document.

(1) OJ C 69, 19.03.2005.

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Laboratoires Boiron SA

Defendant: Union de recouvrement des cotisations de sécurité
sociale et d'allocations familiales (Urssaf) de Lyon, assuming the
rights and obligations of the Agence centrale des organismes de
sécurité sociale (ACOSS)

Re:

Reference for a preliminary ruling — Cour de Cassation —
Interpretation of Articles 86 and 87 — Classification as State
aid of the absence of liability to a tax on wholesale sales of
proprietary medicinal products by wholesalers
to
certain public service obligations in relation to their range,
stocks and delivery times of products (wholesale distributors)

subject

Operative part of the judgment

1. Community law must be interpreted as meaning that a pharma-
ceutical
laboratory liable to pay a contribution such as that
provided for by Article 12 of Law No 97-1164 of 19 December
1997 on social security funding for 1998 is entitled to plead that
the fact that wholesale distributors are not liable for that contribu-
tion constitutes State aid in order to obtain reimbursement of the
part of the sums paid which corresponds to the economic advan-
tage unfairly obtained by wholesale distributors.

Judgment of the Court (First Chamber) of 14 September
2006 (reference for a preliminary ruling from the Finanz-
gericht München, Germany) — Hausgemeinschaft Jörg und
Stefanie Wollny v Finanzamt Landshut

(Case C-72/05) (1)

(Sixth VAT Directive — Article 11A(1)(c) — Use of property
forming part of the assets of a business for private purposes
by a taxable person — Treatment of that use as a supply of
services for consideration — Determination of the taxable
amount — Definition of full cost to the taxable person of
providing those services)

(2006/C 281/19)

Language of the case: German

Referring court

Finanzgericht München, Germany

Parties to the main proceedings

Applicant: Hausgemeinschaft Jörg und Stefanie Wollny

Defendant: Finanzamt Landshut