CELEX: 62001CJ0126
Language: en
Date: 2003-11-20
Title: Judgment of the Court (Sixth Chamber) of 20 November 2003. # Ministère de l'Économie, des Finances et de l'Industrie v GEMO SA. # Reference for a preliminary ruling: Cour administrative d'appel de Lyon - France. # State aid - System of financing a public carcass disposal service by a meat purchase tax - Interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC). # Case C-126/01.

Case C-126/01 Ministre de l'Économie, des Finances et de l'IndustrievGEMO SA(Reference for a preliminary ruling from the Cour administrative d'appel de Lyon (France))
         
            «(State aid – System of financing a public carcass disposal service by a meat purchase tax – Interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC))»
            
               
                  Opinion of Advocate General Jacobs delivered on 30 April 2002 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court (Sixth Chamber), 20 November 2003  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  State aid – Definition – Payment of costs of disposal of animal carcasses and slaughterhouse waste inherent in the economic activities of farmers and
                     slaughterhouses – Included  
                  (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
         
                  2..
                  State aid – Definition – Selective nature of the measure  (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
         
                  3..
                  State aid – Effect on trade between Member States – Assessment criteria   (EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
         
         1.
          The notion of State aid can encompass not only positive benefits such as subsidies, loans or direct investment in the capital
         of enterprises, but also interventions which, in various forms, such as the supply of goods or services on preferential terms,
         mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies
         in the strict sense of the word, are of the same character and have the same effect. In that regard Article 92(1) of the Treaty
         (now, after amendment, Article 87(1) EC) does not distinguish between measures of State intervention by reference to their
         causes or aims but defines them in relation to their effects. Thus, since the financial cost incurred in the disposal of animal carcasses and slaughterhouse waste must be considered to
         be an inherent cost of the economic activities of farmers and slaughterhouses, intervention by the public authorities intended
         to relieve them of that financial burden appears to be an economic advantage liable to distort competition within the meaning
         of Article 92(1) of the Treaty. see paras 28-29, 31, 33-34
         
         2.
          Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC) requires the determination of whether, under a particular
         statutory scheme, a State measure is such as to favour certain undertakings or the production of certain goods over others.
         If so, the measure satisfies the condition of selectivity which defines State aid as laid down by that provision. The fact that the undertakings able to claim entitlement under that measure belong to different sectors of activity is not
         sufficient to call into question its selective nature and therefore, to rule out its classification as State aid. see paras 35, 39
         
         3.
          When aid granted by the State strengthens the position of an undertaking vis-à-vis other undertakings competing in intra-Community
         trade, the latter must be regarded as affected by that aid. see para. 41
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)20 November 2003  (1)
         
         
            
         
               ((State aid – System of financing a public carcass disposal service by a meat purchase tax – Interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC)))
               
            In Case C-126/01, 
             REFERENCE to the Court under Article 234 EC by the Cour administrative d'appel de Lyon (France) for a preliminary ruling in
            the proceedings pending before that court between
            
            
            
             Ministre de l'économie, des finances et de l'industrie 
            
            
            and
            
             GEMO SA, 
            
            
             on the interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC),
            
            THE COURT (Sixth Chamber),,
            
             composed of: V. Skouris, acting as President of the Sixth Chamber, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges, 
            
             Advocate General: F.G. Jacobs, Registrar: H.A. Rühl, Principal Administrator, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
                GEMO SA, by M. Jacquot and O. Prost, avocats, 
               
               
               ─
                the French Government, by G. de Bergues and F. Million, acting as Agents, 
               
               
               ─
                the Commission of the European Communities, by D. Triantafyllou, acting as Agent, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the oral observations of GEMO SA, represented by M. Jacquot and O. Prost, of the French Government, represented
               by F. Million, of the United Kingdom Government, represented by J.E. Collins, acting as Agent, and of the Commission, represented
               by D. Triantafyllou, at the hearing on 17 January 2002,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 30 April 2002,
         gives the following
         
         
         Judgment
         1
            
          By judgment of 13 March 2001, received at the Court on 19 March 2001, the Cour administrative d'appel de Lyon (Administrative
         Court of Appeal, Lyon) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation
         of Article 92 of the EC Treaty (now, after amendment, Article 87 EC). 
         
         
         2
            
          That question was raised in proceedings brought by the Ministre de l'économie, des finances et de l'industrie (Minister for
         Economic Affairs, Finance and Industry), seeking annulment of a judgment of the Tribunal administratif de Dijon (Administrative
         Court, Dijon) (France) granting GEMO SA (
         GEMO) a refund of the tax on meat purchases which it had paid between 1 January 1997 and 31 August 1998. 
         
            
               Legal background
             The Community legislation
         
         
         3
            
          Article 92(1) of the Treaty provides: Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever
         which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall,
         in so far as it affects trade between Member States, be incompatible with the common market.
         
         
         4
            
          Article 93(3) of the EC Treaty (now Article 88(3) EC) provides: The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid.
         If it considers that any such plan is not compatible with the common market having regard to Article 92, it shall without
         delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into
         effect until this procedure has resulted in a final decision.
          The national legislation
         
         
         5
            
          Article 1─A of Law No 96-1139 of 26 December 1996 on the collection and destruction of animal carcasses and slaughterhouse
         waste, amending the Rural Code (JORF of 27 December 1996, p. 19184), inserted Article 302 bis ZD into the Code général des
         impôts (French General Tax Code), which provided: I. With effect from 1 January 1997, a tax shall be payable by any person who makes retail sales of the meat and products listed
         in II below.II. The tax shall be based on the value, exclusive of value added tax, of purchases from any source of:
         
         
         ─
             the meat and offal, whether fresh or cooked, refrigerated or frozen, of poultry, rabbit, game, cattle, sheep, goats and pigs,
            and of horses, donkeys and their hybrids; 
         
         
         
         ─
             cured meat, prepared pork products, lard, preserved meats and processed offal; 
         
         
         
         ─
             animal feed made of meat and offal. 
         ...
         
         
         6
            
          Under Article 302 bis ZD, paragraph V, of that code, the rate of the meat purchase tax may not exceed 0.6% for the first tranche
         of purchases each month exclusive of value added tax up to FRF 125 000 and 1% for purchases over FRF 125 000. 
         
         
         7
            
          Under Article 1─B of Law No 96-1139, the sums generated by the meat purchase tax are paid into a fund to finance the collection
         and disposal of animal carcasses and animal material seized in slaughterhouses found unfit for human or animal consumption,
         operated by the Centre national pour l'aménagement des structures des exploitations agricoles (National centre for the development
         of farm structures). 
         
         
         8
            
          The first line of Article 264 of the Rural Code provides: The collection and disposal of animal carcasses and of meat and offal seized at slaughterhouses which are found unfit for
         human or animal consumption is a public service which falls within the authority of the State.
         
         
         9
            
          By virtue of Article 265(I) of the Rural Code the use of the public carcass disposal service is obligatory for: 
         
         
         ─
             owners and holders of carcasses of dead animals or batches of dead animals weighing more than 40 kilograms in total; 
         
         
         
         ─
             slaughterhouses, without weight limitation, in respect of carcasses of animals which died before slaughter and of meat and
            offal seized at the slaughterhouse found unfit for human or animal consumption. 
         
         
         
         
         10
            
          Under that provision, it is prohibited to bury, to discard in any place or to incinerate carcasses of dead animals or batches
         of dead animals weighing more than 40 kilograms in total and carcasses of animals of any weight which died before slaughter
         and meat as well as offal seized at the slaughterhouse found unfit for human or animal consumption. 
         
         
         11
            
          Decree No 96-1229, of 27 December 1996, on the public carcass disposal service, amending the Rural Code (JORF of 31 December
         1996, p. 19697), inserted clauses into that code providing, on the one hand, that, in order to fulfil the public carcass disposal
         service and in accordance with general public procurement rules, the Prefect awards public service contracts of a maximum
         duration of 5 years (Article 264-1 of the Rural Code) and, on the other, that the schedule of special administrative clauses
         relating to those contracts defines inter alia the method of remuneration for the operations to be carried out by the holder
         of the contract, remuneration which is exclusive of any payment collected from the users of the public service (Article 264-2
         of the Rural Code). 
         The main proceedings and the question referred
         
         12
            
          GEMO is a medium-sized supermarket which markets meat and meat-based products in France. In that capacity, it is liable to
         the meat purchase tax created by Law No 96-1139. 
         
         
         13
            
          Claiming that that tax is contrary to Community law, and Article 93(3) of the Treaty in particular, GEMO applied to the French
         tax authorities for reimbursement of the sums paid by way of that tax. 
         
         
         14
            
          That application having been refused by the administration, GEMO appealed against that refusal before the Tribunal administratif
         de Dijon (Administrative Court, Dijon), which, in its judgment of 25 May 2000, held that the arrangement established by Law
         No 96-1139 constituted illegal State aid within the meaning of Article 93(3) of the Treaty. That court therefore granted GEMO
         a refund of the tax on meat purchases which it had paid between 1 January 1997 and 31 August 1998 in the amount of FRF 106 178.
         
         
         
         15
            
          On appeal the Ministre de l'économie, des finances et de l'industrie requested the Cour administrative d'appel de Lyon to
         annul the judgment of the Tribunal administratif de Dijon and to reimpose the tax at issue on GEMO. 
         
         
         16
            
          In its judgment referring the question, the Cour administrative d'appel expresses the view that the arrangement established
         by Law No 96-1139 cannot be regarded as aid in favour of carcass disposal undertakings since the remuneration paid to them
         by the State represents the price of the services which they perform. However, given that the public carcass disposal service
         provides farmers and slaughterhouses with the free collection and disposal of the animal carcasses and waste which they produce,
         it might be regarded as relieving an economic sector of a burden which it would normally have to bear, thus constituting State
         aid within the meaning of Article 92 of the Treaty. 
         
         
         17
            
          In those circumstances, the Cour administrative d'appel de Lyon decided to suspend the proceedings and refer the following
         question to the Court of Justice for a preliminary ruling: Does the tax on meat purchases provided for under Article 302 bis ZD of the Code général des impôts form part of an arrangement
         which may be regarded as aid within the meaning of Article 92 of the Treaty of 25 March 1957 establishing the European Community?
         The question referred
         
         18
            
          In the light of the referring judgment, the question should be understood as asking essentially whether Article 92(1) of the
         Treaty must be interpreted as meaning that a system such as that at issue in the main proceedings, which provides farmers
         and slaughterhouses with the free collection and disposal of animal carcasses and slaughterhouse waste, must be considered
         to be State aid. 
         
         
         19
            
          In fact, the intention of the French authorities in setting up the public carcass collection service was to ensure that the
         collection and disposal of animal carcasses and slaughterhouse waste found unfit for human and animal consumption was mandatory
         and free of charge to users of the service. 
         
         
         20
            
          First, users, that is to say, owners and holders of carcasses of dead animals or batches of dead animals weighing more than
         40 kilograms in total and slaughterhouses, are obliged to use carcass disposal services because they are prohibited from burying
         or discarding in any place or incinerating carcasses or slaughterhouse waste. Second, under the second indent of the second
         subparagraph of Article 264-2 of the Rural Code, the undertakings responsible for operating the public carcass disposal service
         may not receive any payment from users. 
         
         
         21
            
          To answer the question referred, the various elements of the concept of State aid in Article 92(1) of the Treaty must be considered.
         It is settled case-law that classification as aid requires that all the conditions set out in that provision are fulfilled
         (see Case C-482/99  
          France  v  
          Commission  [2002] ECR I-4397, paragraph 68, and Case C-280/00  
          Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I-7747, paragraph 74). 
         
         
         22
            
          Article 92(1) of the Treaty defines State aid which is in principle incompatible with the common market as aid granted by
         a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring
         certain undertakings or the production of certain goods, in so far as it affects trade between Member States. 
         
         
         23
            
          First, according to settled case-law, it is not appropriate to distinguish between cases in which aid is granted directly
         by the State and those in which it is granted by a public or private body designated or established by that State (see Case
         57/86  
          Greece  v  
          Commission  [1988] ECR 2855, paragraph 12, and Case C-379/98  
          PreussenElektra  [2001] ECR I-2099, paragraph 58). 
         
         
         24
            
          However, for advantages to be capable of being categorised as aid within the meaning of Article 92(1) of the Treaty, they
         must, first, be granted directly or indirectly through State resources and, second, be imputable to the State (
          France  v  
          Commission , cited above, paragraph 24). 
         
         
         25
            
          In the main proceedings, under Article 264-1 of the Rural Code, the public carcass disposal service is entrusted to the undertakings
         holding the contracts concluded with the Prefects of each Département. 
         
         
         26
            
          The fact that the service for the collection and disposal of animal carcasses and waste available to farmers and slaughterhouses
         is carried out by private undertakings cannot call into question any classification as State aid as the organisation of that
         service originates with the public authorities.  That service can be imputed to the State. 
         
         
         27
            
          Moreover, the French Government does not dispute that the resources used for the financing of that public service are State
         resources. 
         
         
         28
            
          Second, the notion of aid can thus encompass not only positive benefits such as subsidies, loans or direct investment in the
         capital of enterprises, but also interventions which, in various forms, mitigate the charges which are normally included in
         the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same
         character and have the same effect (see inter alia Case C-156/98  
          Germany  v  
          Commission  [2000] ECR I-6857, paragraph 25, and Joined Cases C-328/99 and C-399/00  
          Italy and SIM 2 Multimedia  v  
          Commission  [2003] ECR I-4035, paragraph 35). 
         
         
         29
            
          The supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as subsidies
         (see Joined Cases 67/85, 68/85 and 70/85  
          Van der Kooy  v  
          Commission  [1988] ECR 219, paragraphs 28 and 29; Case C-56/93  
          Belgium  v  
          Commission  [1996] ECR I-723, paragraph 10, and Case C-39/94  
          SFEI and Others  [1996] ECR I-3547, paragraph 62). 
         
         
         30
            
          Given that, in this case, the service for the collection and disposal of animal carcasses and slaughterhouse waste is provided
         free of charge, it must be ascertained whether that benefit may be considered to relieve undertakings of an expense which
         should properly be covered by their budget. 
         
         
         31
            
          In that regard, it must be held that the financial cost incurred in the disposal of animal carcasses and slaughterhouse waste
         must be considered to be an inherent cost of the economic activities of farmers and slaughterhouses. 
         
         
         32
            
          The activities of such undertakings result in products and residues which cannot be used and are, moreover, harmful to the
         environment, and it is for those responsible for their production to arrange for their disposal. 
         
         
         33
            
          Therefore, intervention by the public authorities intended to relieve farmers and slaughterhouses of that financial burden
         appears to be an economic advantage liable to distort competition. 
         
         
         34
            
          As to the argument of the French Government that the measure in question is part of a health and safety policy which supersedes
         individual interests, suffice it to observe that, according to settled case-law, Article 92(1) of the Treaty does not distinguish
         between measures of State intervention by reference to their causes or aims but defines them in relation to their effects
         (Case C-241/94  
          France  v  
          Commission  [1996] ECR I-4551, paragraph 20, and Case C-382/99  
          Netherlands  v  
          Commission  [2002] ECR I-5163, paragraph 61). 
         
         
         35
            
          Third, Article 92(1) of the Treaty only requires the determination of whether, under a particular statutory scheme, a State
         measure is such as to favour  
         certain undertakings or the production of certain goods over others. If so, the measure satisfies the condition of selectivity which defines State aid as laid down by that provision
         (Case C-143/99  
          Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 34, and Case C-409/00  
          Spain  v  
          Commission  [2003] ECR I-1487, paragraph 47). 
         
         
         36
            
          Under Article 265(I) of the Rural Code the public carcass disposal service is for owners and holders of carcasses of dead
         animals or batches of dead animals weighing more than 40 kilograms in total and slaughterhouses. 
         
         
         37
            
          In the view of the French Government, it is a general measure as farmers and slaughterhouses are not the only ones to use
         the services of the carcass disposal undertakings. Their activities could also include the collection and disposal of carcasses
         of domestic animals and the carcasses of wild animals in public places. 
         
         
         38
            
          However, even if the regime in question also applies to the owners of domestic animals and certain undertakings such as zoos
         or if certain public authorities may occasionally benefit from the measure, the fact remains that Law No 96-1139 essentially
         benefits farmers and slaughterhouses. 
         
         
         39
            
          The fact that the undertakings able to claim entitlement under that measure belong to different sectors of activity is not
         sufficient to call into question its selective nature and therefore, to rule out its classification as State aid (
          Spain  v  
          Commission , cited above, paragraph 48). 
         
         
         40
            
          Finally, for the State measure at issue to be considered as aid, it must be liable to affect trade between Member States.
         
         
         
         41
            
          In that regard, the Court has held that when aid granted by the State strengthens the position of an undertaking vis-à-vis
         other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (Case 730/79  
          Philip Morris  v  
          Commission  [1980] ECR 2671, paragraph 11, and Case C-310/99  
          Italy  v  
          Commission  [2002] ECR I-2289, paragraph 84). 
         
         
         42
            
          In the present case, the fact that, in France, the costs of carcass disposal are borne neither by farmers nor by slaughterhouses
         necessarily has a positive impact on meat prices, thus making that product more competitive on the markets of the Member States
         where such costs are normally paid out of the budgets of competing traders. 
         
         
         43
            
          Against that background, it is clear that a measure of this sort constitutes an advantage for French exports and affects intra-Community
         trade. 
         
         
         44
            
          The answer to the question referred must therefore be that Article 92(1) of the Treaty must be interpreted as meaning that
         a system such as that at issue in the main proceedings, which provides farmers and slaughterhouses with the free collection
         and disposal of animal carcasses and slaughterhouse waste, must be classified as State aid. 
         
         Costs
         45
            
          The costs incurred by the French and United Kingdom Governments and by the Commission, which have submitted observations to
         the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action
         pending before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber),
         
         
          in answer to the question referred to it by the Cour administrative d'appel de Lyon by judgment of 13 March 2001, hereby rules:
         
         
                  Skouris
               
               
                  Cunha Rodrigues 
               
               
                  Schintgen 
               
            
                  Macken
               
               
                  Colneric 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 20 November 2003. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: French.