Streekgewest Westelijk Noord-Brabant v Staatssecretaris van Financiën.
Date: 2005-01-13
15. It is settled case‑law of the Court of Justice that, as a result of the direct effect which the last sentence of Article 93(3) of the Treaty has been held to have, the immediate enforceability of the prohibition on implementation referred to in that article extends to all aid which has been implemented without being notified (Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon  [1991] ECR I‑5505, paragraph 11 (‘ FNCE ’)).
16. Furthermore, the Court has held that where a method of financing aid by means of a tax forms an integral part of the aid measure, the consequences of a failure by the national authorities to comply with the last sentence of Article 93(3) of the Treaty must also apply to that aspect of the aid (Joined Cases C‑261/01 and C‑262/01 Van Calster and Others  [2003] ECR I-0000, paragraph 52). In those circumstances, it follows that the national authorities are therefore required in principle to repay charges levied in breach of Community law (Joined Cases C‑192/95 to C-218/95 Comateb and Others  [1997] ECR I-165, paragraph 20, and Van Calster and Others , paragraph 53).
17. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect. Where such a breach is invoked by individuals who may rely on it and is established by the national courts, the latter must take all the consequential measures under national law (see, in particular, the judgments in FNCE , paragraph 12, and in Case C-17/91 Lornoy and Others  [1992] ECR I-6523, paragraph 30).
18. As regards the national rules relating to the determination of an individual’s standing and legal interest in bringing proceedings, the Court has held that Community law requires that such rules do not undermine the right to effective judicial protection when exercising the rights conferred by Community law (judgments in Joined Cases C-87/90 to C-89/90 Verholen and Others  [1991] ECR I-3757, paragraph 24, and Case C-13/01 Safalero  [2003] ECR I-8679, paragraph 50).
24. It must be observed, at the outset, as the Advocate General pointed out in points 28 and 29 of his Opinion, that the Treaty makes a clear distinction between, on the one hand, the regime in Articles 92 of the EC Treaty (now, after amen dment, Article 87 EC) 93 of the Treaty and 94 of the EC Treaty (now Article 89 EC), concerning State aid and, on the other, that in Articles 101 of the EC Treaty (now, after amendment, Article 96 EC) and 102 of the EC Treaty (now Article 97 EC) concerning the distortions which arise from differences between the laws, regulations or administrative provisions of the Member States and, in particular, their tax provisions.
25. Taxes do not fall within the scope of the provisions of the Treaty concerning State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure.
26. For a tax, or part of a tax, to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated for the financing of the aid. In the event of such hypothecation, the revenue from the tax has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market (see, to that effect, Case 47/69 France  v Commission  [1970] ECR 487, paragraphs 17, 20 and 21). The Court thus held that, where there is such a link between the aid measure and its financing, the notification of the aid provided for in Article 93(3) of the Treaty must also cover the method of financing, so that the Commission may consider it on the basis of all the facts. If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible when, if the Commission had been aware of its method of financing, it could not have been so declared ( Van Calster and Others , paragraphs 49 and 50, and Case C‑352/02 Pearle and Others  [2004] ECR I‑0000, paragraph 30).
27. In the case of the main proceedings, the aid measure takes the form of an exemption from tax on waste. Even if, for the purposes of the budget estimates of the Member State in question, the tax advantage was compensated for by the increase in the amount of the tax on waste from NLG 28.50 to NLG 29.20 per 1 000 kg of waste, that fact is not sufficient in itself to show that the tax was hypothecated to the tax exemption.
28. First, it is clear from the order for reference that the provisions of the WBM do not hypothecate the tax on waste to the financing of the tax exemption. Second, the tax revenue has no impact on the amount of the aid. The application of the tax exemption and its extent do not depend on the tax revenue.