Belgische Staat v Eugène van Calster and Felix Cleeren (C-261/01) and Openbaar Slachthuis NV (C-262/01)
Date: 2003-10-21
46.  The Court has already held that Article 92 of the Treaty does not allow the Commission to isolate the aid as such from the method by which it is financed and to disregard this method if, in conjunction with the aid in its narrow sense, it renders the whole incompatible with the common market (Case 47/69   France   v   Commission   [1970] ECR 487, paragraph 4).
47.  Even though the method of financing satisfies the other requirements of the Treaty, and in particular those flowing from Article 95, that does not mean that the measure in question is valid in relation to Articles 92 and 93 of the Treaty (see, to that effect,   France   v   Commission  , paragraph 13).  It may be that aid in the narrow sense does not substantially affect trade between Member States and may thus be acknowledged as permissible but that the disturbance which it creates is increased by a method of financing it which would render the scheme as a whole incompatible with a single market and the common interest (see   France   v   Commission  , paragraph 16).
48.  Furthermore, where a charge specifically intended to finance aid proves to be contrary to other provisions of the Treaty, for example Articles 9 and 12 of the EC Treaty (now, after amendment, Articles 23 EC and 25 EC) or to Article 95 of the Treaty, the Commission cannot declare the aid scheme of which the charge forms part to be compatible with the common market (see, to that effect, Case 73/79   Commission   v   Italy   [1980] ECR 1533, paragraph 11).
49.  Consequently, the method by which an aid is financed may render the entire aid scheme incompatible with the common market.  Therefore, the aid cannot be considered separately from the effects of its method of financing (France   v   Commission  , paragraph 8).  Quite to the contrary, consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid in a case where that method forms an integral part of the measure.
50.  In such a case, 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.
51.  Accordingly, in order to ensure the effectiveness of the obligation to notify and the Commission's full and appropriate consideration of an aid, the Member State is required, in order to comply with that obligation, to notify not only the planned aid in the narrow sense, but also the method of financing the aid inasmuch as that method is an integral part of the planned measure.
52.  Since the obligation to notify also covers the method of financing the aid, the consequences of a failure by the national authorities to comply with the last sentence of Article 93(3) of the Treaty must apply also to that aspect of the aid.
53.  In that regard it must be observed, first, 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 of putting aid into effect, to which the last sentence of Article 93(3) of the Treaty refers and which has direct effect (Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon  , paragraph 12, and   Lornoy and Others  , paragraph 30) and, second, that the Member State is in principle required to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95Comateb and Others   [1997] ECR I-165, paragraph 20).
55.  In the present case, the charges levied under Articles 14, 15 and 16 of the 1998 Law finance the 1998 Fund.  Those charges are therefore levied specifically and solely for the purpose of financing the aid at issue in the main proceedings.
61.  That conclusion cannot be invalidated by the Belgian State's argument based on Article 90(2) of the Treaty.  Even if that provision could apply to the 1998 Fund, it must be observed that, as the Belgian State itself accepted, the 1998 Law ought in any event to have been notified in accordance with Article 93(3) of the Treaty (see Case C-332/98   France   v   Commission   [2000] ECR I-4833, paragraphs 31 to 33).  That law too was necessarily subject to the prohibition on implementation under Article 93(3).
62.  Moreover, the illegality of an aid measure, or of part of that measure, owing to infringement of the obligation to notify prior to its implementation is not affected by the fact that the measure has been held to be compatible with the common market by a final decision of the Commission.
63.  The Court has already held that the Commission's final decision does not have the effect of regularising   ex post facto   implementing measures which were invalid because they had been taken in breach of the prohibition laid down by the last sentence of Article 93(3) of the Treaty, since otherwise the direct effect of that prohibition would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded.  Any other interpretation would have the effect of according a favourable outcome to the non-observance of that provision by the Member State concerned and would deprive it of its effectiveness (see   Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon  , paragraph 12, and   Lornoy and Others  , paragraph 16).
64.  Furthermore, it is for the national courts to uphold the rights of the persons concerned in the event of any breach by the national authorities of the prohibition on putting aid into effect, which is referred to in the last sentence of Article 93(3) of the Treaty and has direct effect.  Where such a breach is invoked by individuals entitled to rely on it and is established by the national courts, the latter must take all the consequential measures under national law as regards both the validity of decisions giving effect to the aid measures concerned and the recovery of the financial support granted (see   Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon  , paragraph 12, and   Lornoy and Others  , paragraph 30).
74.  In supervising the Member States' compliance with their obligations under Articles 92 and 93 of the Treaty, the national courts and the Commission fulfil complementary and separate roles (Case C-39/94   SFEI and Others   [1996] ECR I-3547, paragraph 41).
75.  Whilst assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the Court, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aids to the Commission pursuant to Article 93(3) of the Treaty is infringed (Case C-295/97   Piaggio   [1999] ECR I-3735, paragraph 31).
76.  Unlike the national courts, the Commission cannot therefore order the return of a State aid on the sole ground that it was not notified in accordance with Article 93(3) of the Treaty (see   Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon  , paragraph 13, and   SFEI and Others  , paragraph 43).