GAS APPLIED IN THE NETHERLANDS IN RESPECT OF GLASSHOUSE GROWERS FROM 1 OCTOBER 1984 IS INCOMPATIBLE WITH THE COMMON MARKET WITHIN THE MEANING OF ARTICLE 92 OF THE TREATY AND MUST BE DISCONTINUED ". ARTICLE 2 OF THE DECISION PROVIDES THAT "THE NETHERLANDS SHALL INFORM THE COMMISSION BEFORE 15 MARCH 1985 OF THE ACTION IT HAS TAKEN TO COMPLY WITH ARTICLE 1 ".
3 IN ITS STATEMENT OF THE REASONS FOR THE DECISION, THE COMMISSION EXPLAINED THAT IN THE NETHERLANDS THE RATES CHARGED TO GLASSHOUSE GROWERS FOR NATURAL GAS ARE THE SUBJECT OF CONTRACTS BETWEEN NV NEDERLANDSE GASUNIE, GRONINGEN, A COMPANY INCORPORATED UNDER PRIVATE LAW 50% OF WHOSE CAPITAL IS HELD DIRECTLY OR INDIRECTLY BY THE NETHERLANDS GOVERNMENT AND THE REMAINDER BY TWO PRIVATE COMPANIES, AND THE LANDBOUWSCHAP, A BODY ESTABLISHED UNDER PUBLIC LAW TO PROTECT THE COMMON INTERESTS OF AGRICULTURAL UNDERTAKINGS, TAKING INTO ACCOUNT THE PUBLIC INTEREST . A FURTHER PARTY TO THESE CONTRACTS IS THE VERENIGING VAN EXPLOITANTEN VAN GASBEDRIJVEN IN NEDERLAND ( VEGIN ), AN ASSOCIATION OF LOCAL GAS-DISTRIBUTION COMPANIES .
4 SINCE 1963 THE TARIFFS THEREBY NEGOTIATED, LIKE ALL THE TARIFFS CHARGED BY GASUNIE, HAVE BY AGREEMENT BEEN SUBJECT TO THE APPROVAL OF THE MINISTER FOR ECONOMIC AFFAIRS .
5 AS EARLY AS 1981 THE COMMISSION TOOK THE VIEW THAT THE HORTICULTURAL TARIFF PREVAILING AT THE TIME WAS A PREFERENTIAL TARIFF INASMUCH AS IT PROVIDED EXCEPTIONALLY FAVOURABLE CONDITIONS FOR GROWERS IN THE NETHERLANDS . IT ACCORDINGLY FOUND, BY DECISION 82/73 OF 15 DECEMBER 1981 ( OFFICIAL JOURNAL 1982, L 37, P . 29 ), THAT THE TARIFF CONSTITUTED AID INCOMPATIBLE WITH ARTICLE 92 OF THE EEC TREATY, AND REQUIRED THE NETHERLANDS TO DISCONTINUE IT .
6 FOLLOWING THAT DECISION, WHICH HAD IN THE MEANTIME BEEN CHALLENGED IN THREE ACTIONS FOR ANNULMENT UNDER ARTICLE 173 OF THE EEC TREATY, A NEW TARIFF WAS NEGOTIATED . THAT TARIFF, WHICH RECEIVED THE APPROVAL OF THE COMMISSION, ENTAILED THE ALIGNMENT OF THE HORTICULTURAL TARIFF ON THE INDUSTRIAL TARIFF ( SPECIFICALLY, ON THE "D" INDUSTRIAL TARIFF ) PLUS A PREMIUM OF 0.5 CENTS/M3 . IT ALSO CONTAINED A QUARTERLY REVISION CLAUSE SIMILAR TO THE CLAUSE IN FORCE FOR INDUSTRY, AND WAS APPLIED FROM 1 APRIL 1983 TO 30 SEPTEMBER 1984 .
7 ON THE ADOPTION OF THE NEW TARIFF DECISION 82/73 WAS REPEALED AND THE ACTIONS BROUGHT AGAINST IT WERE DISCONTINUED .
8 ON 28 SEPTEMBER 1984 A NEW TARIFF CONTRACT WAS CONCLUDED BETWEEN GASUNIE, VEGIN AND THE LANDBOUWSCHAP FOR THE PERIOD FROM 1 OCTOBER 1984 TO 1 OCTOBER 1985 . UNDER THE NEW TARIFF THE GAS PRICE FOR HORTICULTURE IS EQUIVALENT TO THE AVERAGE 1983 LEVEL, PLUS A FIXED PERCENTAGE OF 10 %. THE CEILING PRICE FOR GAS IS THUS 42.5 CENTS/M3 .
9 THE COMMISSION OPENED THE PROCEDURE UNDER ARTICLE 93 ( 2 ) OF THE EEC TREATY IN RESPECT OF THE NEW TARIFF, WHICH THE NETHERLANDS GOVERNMENT HAD NOTIFIED TO IT BY LETTER OF 4 OCTOBER 1984, AND ULTIMATELY ADOPTED DECISION 85/215, WHICH IS CHALLENGED IN THESE PROCEEDINGS