CELEX: C2002/289/22
Language: en
Date: 2002-11-23 00:00:00
Title: 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

23.11.2002                EN                   Official Journal of the European Communities                                      C 289/13
The applicant claims that the Court should:                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                          27 September 2002, received at the Court Registry on
—      declare that, when the municipal community of Le Mans              30 September 2002, for a preliminary ruling in the proceed-
       awarded a contract with the purpose of assisting the               ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
       person responsible for the Chauvinière sewage treatment            3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
       works to carry out a study into it without previously              the following questions:
       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;                                  (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
—      order the French Republic to pay the costs.
                                                                               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
Pleas in law and main arguments                                                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
The Commission takes the view that the tender for the study
                                                                               make any difference whether the collective advertising
into the works which concerned services other than those                       campaigns are offered to (undertakings in) the same
involved in the call for proposals launched by the notice                      business sector as that on which the levy decisions in
published in the Official Journal of the European Communities                  question are imposed? If so, what difference does it make?
on 30 November 1996 should have been published and                             Is it relevant in that connection whether the costs incurred
should have been the subject of a new tender in compliance
                                                                               by the public body are offset in full by the earmarked
with the obligations laid down by Directive 92/50/EEC. The                     levies payable by the undertakings benefiting from the
direct award of that contract to the successful tenderer of the                service, so that the benefit derived costs the public
call for proposals was unauthorised. Nor can it be justified on                authorities, on balance, nothing? Is it relevant in that
the basis of a reference in the notice of 30 November 1996                     connection whether the benefit from the collective adver-
according to which ‘the tenderer whose solution is accepted in
                                                                               tising campaigns is distributed more or less evenly across
the context of the competition for proposals may be invited to                 the field of activity concerned and whether the individual
become involved in the implementation of his idea as part of                   establishments within the branch are also deemed, on
a study intended to ... assist the person responsible for the
                                                                               balance, to have derived a more or less equal benefit or
works’.                                                                        profit from those campaigns?
( 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).                             (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?
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                  (3) If the national court concludes that aid within the
                   Hoofdbedrijfschap Ambachten                                 meaning of Article 92(1) is involved, must it then
                                                                               consider the ‘de minimis’ rule, as formulated by the
                                                                               Commission in a notice published in OJ 1992 C 213 (and
                           (Case C-345/02)
                                                                               subsequently in OJ 1996 C 68), when assessing whether
                                                                               the measure in question is to be regarded as aid which
                           (2002/C 289/22)                                     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
Reference has been made to the Court of Justice of the                         advertising campaigns which benefit an entire branch of
European Communities by judgment of the Hoge Raad                              industry?
 ---pagebreak--- 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               The Commission of the European Communities claims that
      C-39/94 SFEI v La Poste [1996] ECR I-3547, for the                  the Court should:
      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                —     declare that, by introducing and maintaining in force a
      court must order the public body to repay the levies,                     system of bonuses and penalties having automatic and
      even if that is precluded by the rule developed in the                    compulsory repercussions on premium rates and apply-
                                                                                ing to all motor insurance contracts concluded on
      Netherlands case-law concerning the formal legal force of
      the levy decisions? Is it relevant in that regard that                    Luxembourg territory by natural persons, without any
      repayment of the levies does not in practice eliminate the                distinction being drawn between insurance companies
                                                                                based in the Grand Duchy of Luxembourg and insurance
      advantage which the field of activity and the individual
      undertakings in the branch obtained through the collec-                   undertakings operating there through a branch or by the
      tive advertising campaigns? Does Community law allow                      provision of services, contrary to the principle of freedom
      repayment of the earmarked levy not to take place, either                 to set premium rates and elimination of prior or system-
      wholly or in part, if, in the opinion of the national court,              atic controls on premium scales and contracts, as estab-
                                                                                lished by Articles 6(3), 29 and 39 of Directive 92/49/
      the field of activity or the individual undertakings would
      be placed at an unfair advantage in connection with the                   EEC (1), the Grand Duchy of Luxembourg has failed to
      circumstance that the advantage obtained as a result of                   fulfil its obligations under that directive;
      the advertising campaigns cannot be returned in kind?
                                                                          —     order the French Republic to pay the costs.
(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
                                                                          Pleas in law and main arguments
      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          The Commission does not deny that it is open to Member
      forms part had not been notified? May an individual                 States to establish a scale taking into account the claims record
      assume in this connection that the authorities have                 of insured persons or even a uniform system of bonuses and
      fulfilled their obligations to notify aid under Article 93(3)       penalties, but it does oppose any scale or system accompanied
      of the EC Treaty?                                                   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 the premium rates, with the result 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
Action brought on 30 September 2002 by the Com-                           the right to place the insured person, at the time of entering
mission of the European Communities against the Grand                     into the system, on another level of the scale or to choose
                      Duchy of Luxembourg                                 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
                          (Case C-346/02)                                 other period of time.
                          (2002/C 289/23)                                 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.
An action against the Grand Duchy of Luxembourg was                       In any event, as regards consumer protection, there are other
brought before the Court of Justice of the European Communi-              systems which produce the same result without impinging on
ties on 30 September 2002 by the Commission of the                        rate-setting policy, in particular the organisation of a scheme
European Communities, represented by C. Tufvesson and                     involving the systematic publication of the rate-setting policies
J.-F. Pasquier, acting as Agents, with an address for service in          pursued by the undertakings concerned in accordance with a
Luxembourg.                                                               common scale of accident claims. Moreover, it is not apparent