Air Liquide Industries Belgium SA v Ville de Seraing (C-393/04) and Province de Liège (C-41/05).
Date: 2006-06-15
23. It should be noted that, according to settled case-law, in the context of the procedure established by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it (see Case C-334/95 Kr üger [1997] ECR  I-4517, paragraph 22, and Case C-88/99 Roquette Frères  [2000] ECR I-10465, paragraph 18).
24. It should also be noted that, according to settled case-law, it is for the national court hearing a dispute to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. The Court may, however, refuse to rule on a question referred for a preliminary ruling by a national court, inter alia where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or its purpose (see, inter alia, Case C-421/97 Tarantik [1999] ECR I-3633, paragraph 33, Case C-437/97 EKW and Wein & Co  [2000] ECR I‑1157, paragraph 52, and Case C-390/99 Canal Satélite Digital  [2002] ECR I-607, paragraph 19).
25. Concerning the purpose of the main actions, it is important to point out that, as is apparent from the written and oral evidence presented to the Court, in particul ar the explanations given by the applicant in the main proceedings, although the purpose of Air Liquide’s claims is the reimbursement of the disputed taxes, they also call in question the validity of the legal instruments which introduced those taxes.
27. It is important to recall that the aim of Article 87 EC is to prevent trade between Member States from being affected by benefits granted by the public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or the production of certain goods (Case 173/73 Italy  v Commission  [1974] ECR 709, paragraph 13).
29. Concerning the first and second conditions, it should be recalled that, according to settled case-law, the definition of aid is more general than that of subsidy, because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, in particular, Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 38; Case C-501/00 Spain  v Commission  [2004] ECR I-6717, paragraph 90, and Case C-66/02 Italy  v Commission  [2005] ECR I-0000, paragraph 77).
30. It follows that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers constitutes State aid within the meaning of Article 87(1) EC (see Case C-387/92 Banco Exterior de España  [1994] ECR I-877, paragraph 14, and Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I-0000, paragraph 132).
32. Since they do not therefore apply to all economic operators, these measures cannot be considered to be general measures of tax or economic policy (see Case C‑66/02 Italy  v Commission , paragraph 99, and Case C-148/04 Unicredito Italiano  [2005] ECR I-0000, paragraph 49).
34. For the purpose of such a categorisation, it follows from the case-law that it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (see Case C‑372/97 Italy  v Commission  [2004] ECR I-3679, paragraph 44; Case C-66/02 Italy  v Commission , paragraph 111, and Unicredito Italiano , paragraph 54).
35. In particular, where aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid. Moreover, it is not necessary that the recipient undertaking itself be involved in the said trade (see, in particular, Case C-66/02 Italy  v Commission , paragraphs 115 and 117, and Unicredito Italiano , paragraphs 56 and 58, and the case-law cited).
36. Finally, the relatively small amount of the aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Joined Cases C-278/92 to C‑280/92 Spain  v Commission  [1994] ECR I‑4103, paragraph 42).
41. In that respect, the Court has held that national courts are involved in the system for reviewing State aid only through the direct effect attributed by case-law to the prohibition on putting State aid into effect, in accordance with the third sentence of Article 88(3) EC. The Court has in particular stated that it is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by national authorities of the prohibition on putting aid into effect (see Joined Cases C-261/01 and C-262/01 Van Calster and Others  [2003] ECR I‑12249, paragraph 53).
42. With regard to the measures which may or must be taken to ensure this legal protection, the Court has stated that, where such a breach is invoked by individuals, national courts must take all the consequential measures, in accordance with national procedures, as regards both the validity of measures giving effect to the aid and the recovery of financial support granted in disregard of Article 88(3) EC (see Case C‑354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon  [1991] ECR I-5505, paragraph 12, and Case C-174/02 Streekgewest  [2005] ECR I-85, paragraph 17).
43. The Court has also held that those liable to pay a tax cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax (see Case C-390/98 Banks  [2001] ECR I-6117, paragraph 80). It follows that, even if the exemption at issue in the main proceedings constitutes aid within the meaning of Article 87 EC, the fact that  the aid may be unlawful does not affect the legality of the tax itself.
45. Finally, it should be pointed out that an extension of the circle of potential recipients to other undertakings would not make it possible to eliminate the effects of aid granted in breach of Article 88(3) EC but would rather, on the contrary, lead to an increase in the effects of that aid.
46. It would be otherwise if the tax and the envisaged exemption were an integral part of an aid measure. For 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 and has a direct impact on the amount thereof and, consequently, on the assessment of the compatibility of that aid with the common market (see Streekgewest , paragraph 26, and Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C-325/04 Casino France and Others [2005] ECR I‑9481, paragraph 40). However, a tax cannot be hypothecated to an exemption from payment of that same tax for a category of businesses. Application of a tax exemption and its extent do not depend on the tax revenue (see Streekgewest , paragraph 28, and Casino France and Others , paragraph 41).
50. It must first be borne in mind that Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, so that under the system of the Treaty the same measure cannot belong to both categories at the same time (see Case C-266/91 Celbi  [1993] ECR I-4337, paragraph 9).
– The third question
51. It is important to note that, according to settled case-law, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Article 25 EC (see Case C-347/95 UCAL  [1997] ECR I-4911, paragraph 18; Case C-72/03 Carbonati Apuani  [2004] ECR I‑8027, paragraph 20, and Case C-293/02 Jersey Produce Marketing Organisation  [2005] ECR I-9543, paragraph 55).
55. As the Court has already held, within the system of the Treaty, Article 90 EC supplements the provisions on the abolition of customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States (Case 168/78 Commission  v France  [1980] ECR 347, paragraph 4; Case 169/78 Commission  v Italy  [1980] ECR 385, paragraph 4, and Case 171/78 Commission  v Denmark  [1980] ECR 447, paragraph 4).
56. It is important to add that pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 90 EC (see, in particular, Case 90/79 Commission  v France [1981] ECR 283, paragraph 14; Case C-163/90 Legros and Others  [1992] ECR I-4625, paragraph 11, and Case C-17/91 Lornoy and Others  [1992] ECR I-6523, paragraph 19).