Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting, Amsterdam and Utrecht.
Date: 1984-10-09
10 IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY , THE COURT MAY NOT RULE ON THE INTERPRETATION OF NATIONAL LAWS AND REGULATIONS OR ON THE CONFORMITY OF SUCH MEASURES WITH COMMUNITY LAW ; IT MAY ONLY PROVIDE THE NATIONAL COURT WIHT THE CRITERIA FOR INTERPRETATION BASED ON COMMUNITY LAW WHICH WILL ENABLE THAT COURT TO SOLVE THE LEGAL PROBLEM WITH WHICH IT IS FACED . IN THIS INSTANCE , IT IS THEREFORE NECESSARY TO PROVIDE THE GERECHTSHOF WITH THE CRITERIA FOR INTERPRETATION WHICH WILL ENABLE IT TO DECIDE WHETHER THE PLAINTIFF IN THE MAIN PROCEEDINGS IS JUSTIFIED IN RELYING UPON THE NETHERLANDS GOVERNMENT ' S FAILURE TO COMPLY WITH THE PROVISIONS OF THE TREATY ON STATE AID IN ORDER TO PREVENT THE TAX AUTHORITIES FROM APPLYING THE LAWS IN QUESTION TO IT .
11 THOSE PROVISIONS MAY BE RELIED UPON BY INDIVIDUALS ONLY IF THE NATIONAL MEASURES IN QUESTION CONSTITUTE AID WITHIN THE MEANING OF ARTICLE 92 AND IF THE PROCEDURE FOR REVIEW PROVIDED FOR IN ARTICLE 93 ( 3 ) HAS NOT BEEN COMPLIED WITH ( JUDGMENT OF 22 MARCH 1977 IN CASE 78/76 STEINIKE AND WEINLIG ( 1977 ) ECR 595 ). WHERE IT IS APPARENT FROM THE FACTS OF THE CASE THAT THE PROCEDURAL RULES WERE FOLLOWED , IT IS IN ANY EVENT UNNECESSARY TO INQUIRE INTO THE NATURE OF THE NATIONAL MEASURE CONCERNED . CONSEQUENTLY , THE COURT CONSIDERS IT APPROPRIATE TO EXAMINE IN THE FIRST PLACE THE QUESTIONS DESIGNED TO ESTABLISH WHETHER THE PROCEDURAL RULES LAID DOWN IN ARTICLE 93 ( 3 ) OF THE TREATY WERE COMPLIED WITH .

THE SECOND QUESTION
17 IT IS SUFFICIENT TO NOTE THAT ARTICLE 93 ( 3 ) IS NOT CONFINED SOLELY TO THE GRANT OF AID , BUT ALSO COVERS THE ALTERATION THEREOF , AND THAT THE AFORESAID AIM OF THE FIRST SENTENCE OF THAT PROVISION COULD NOT BE ACHIEVED IF THE COMMISSION WERE INFORMED ONLY OF THE INITIAL PLANS AND NOT OF SUBSEQUENT ALTERATIONS . HOWEVER , IT MUST BE ADDED THAT SUCH INFORMATION MAY BE SUPPLIED TO THE COMMISSION IN THE COURSE OF THE CONSULTATIONS WHICH TAKE PLACE BETWEEN THE COMMISSION AND THE MEMBER STATE CONCERNED FOLLOWING THE INITIAL NOTIFICATION .
18 IN REPLY TO THE THIRD QUESTION IT MUST THEREFORE BE STATED THAT THE OBLIGATION PROVIDED FOR IN THE FIRST SENTENCE OF ARTICLE 93 ( 3 ) TO INFORM THE COMMISSION OF PLANS TO GRANT OR ALTER AID DOES NOT APPLY SOLELY TO THE INITIAL PLAN , BUT ALSO COVERS SUBSEQUENT ALTERATIONS TO THAT PLAN ; SUCH INFORMATION MAY BE SUPPLIED TO THE COMMISSION IN THE COURSE OF THE CONSULTATIONS WHICH TAKE PLACE FOLLOWING THE INITIAL NOTIFICATION .

THE FOURTH QUESTION
21 IT FOLLOWS THAT THE PROHIBITION APPLIES TO THE AID PROGRAMME IN ITS ENTIRETY AND IN THE FINAL VERSION ADOPTED BY THE NATIONAL AUTHORITIES . IF THE INITIAL PLAN HAS BEEN ALTERED , THE LAST SENTENCE OF ARTICLE 93 ( 3 ) THEREFORE APPLIES TO THE PLAN AS ALTERED . WHERE THE PLAN HAS BEEN NOTIFIED AND THE COMMISSION HAS NOT RAISED ANY OBJECTIONS TO IT , BUT THE MEMBER STATE CONCERNED HAS MADE ALTERATIONS OF WHICH THE COMMISSION HAS NOT BEEN INFORMED , THE PROVISION PRECLUDES THE PUTTING INTO EFFECT OF THE AID PROGRAMME IN ITS ENTIRETY . THE POSITION MAY BE DIFFERENT ONLY WHERE THE ALTERATION IN QUESTION IS IN ACTUAL FACT A SEPARATE AID MEASURE WHICH SHOULD BE ASSESSED SEPARATELY AND WHICH IS THEREFORE NOT SUCH AS TO INFLUENCE THE ASSESSMENT WHICH THE COMMISSION HAS ALREADY MADE OF THE INITIAL PLAN .
22 IN REPLY TO THE FOURTH QUESTION IT MUST THEREFORE BE STATED THAT THE PROHIBITION ON THE PUTTING INTO EFFECT OF AID MEASURES , WHICH IS LAID DOWN IN THE LAST SENTENCE OF ARTICLE 93 ( 3 ), APPLIES TO THE PROPOSED AID PROGRAMME IN ITS ENTIRETY AND IN THE FINAL VERSION ADOPTED BY THE NATIONAL AUTHORITIES . IF THE PLAN INITIALLY NOTIFIED HAS IN THE MEANTIME UNDERGONE ALTERATIONS OF WHICH THE COMMISSION HAS NOT BEEN INFORMED , THE PROHIBITION APPLIES TO THE PLAN AS ALTERED , UNLESS THE ALTERATION IN QUESTION IS IN ACTUAL FACT A SEPARATE AID MEASURE WHICH SHOULD BE ASSESSED SEPARATELY AND WHICH IS THEREFORE NOT SUCH AS TO INFLUENCE THE ASSESSMENT WHICH THE COMMISSION HAS ALREADY MADE OF THE INITIAL PLAN ; IN THAT CASE , THE PROHIBITION APPLIES ONLY TO THE AID MEASURE INTRODUCED BY THE ALTERATION .