Nazairdis SAS, now Distribution Casino France SAS and Others v Caisse nationale de l'organisation autonome d'assurance vieillesse des travailleurs non salariés des professions industrielles et commerciales (Organic).
Date: 2005-10-27
30. An aid measure within the meaning of Article 87(1) EC which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful (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 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, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (see Joined Cases C-34/01 to C-38/01 Enirisorse [2003] ECR I-14243, paragraph 42).
34. According to consistent case-law, taxes do not fall within the scope of the EC Treaty’s provisions concerning State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure (Case C-174/02 Streekgewest  [2005] ECR I-85, paragraph 25).
35. If a tax effectively constitutes an integral part of an aid measure within the meaning of Article 87(1) EC, disregard on the part of the national authorities of the obligations arising from Article 88(3) EC affects not only the lawfulness of the aid measure but also that of the tax which constitutes the method of financing it (see Enirisorse , paragraphs 43 to 45).
40. In that regard, it must be borne in mind that, 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. 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 that aid with the common market ( Streekgewest , paragraph 26).
41. 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 ( Streekgewest , paragraph 28).
42. Thus the Court has held that businesses 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).
43. Accordingly, even if the tax exemption for small retail outlets constitutes an aid measure within the meaning of Article 87(1) EC, the possible illegality of that aid is not such as to affect the legality of the TACA.
44. It therefore follows from the above that the possible illegality of exemption from the TACA for small retail outlets is not such as to affect the legality of the tax itself, so that businesses which are liable to pay the TACA cannot plead the possible illegality of the exemption before the national courts in order to avoid payment of that tax or to obtain reimbursement.
The various uses to which the revenue from the TACA is put
46. However, it must be borne in mind that, in the context of the cases in the main proceedings, which all concern demands for reimbursement of taxes that are allegedly unlawful under Articles 87(1) EC and 88(3) EC, the question whether the various measures financed by means of the TACA constitute State aid is relevant only in so far as it is established that the tax is hypothecated to the measures concerned ( Streekgewest , paragraph 26).
50. The national legislation at issue in the main proceedings can thus be distinguished from that considered in the case which gave rise to the judgment in Case 47/69 France  v Commission  [1970] ECR 487, paragraph 20, where it was provided that the aid which it established increased ‘in proportion to the increase in the revenue from the charge’.
52. By contrast, in the cases in the main proceedings, there is no connection between the revenue from the TACA and the amount of the cessation payment granted to traders and craftsmen who permanently cease working. The national legislation at issue establishes the amount of the cessation payment between a minimum and maximum value regardless of the revenue from the tax. It is then for the local committee to decide upon the amount of the cessation payment solely on the basis of the personal circumstances of the traders and craftsmen concerned. Since the revenue from the TACA does not influence the amount of the advantage granted to traders and craftsmen by virtue of the cessation payment, the TACA is not hypothecated to the cessation payment within the meaning of the case-law cited in paragraph 40 of this judgment.
54. Secondly, as regards the allocation of part of the revenue from the TACA to the financing of basic old-age insurance schemes for self-employed persons in the craft sector and for self-employed persons in manufacturing and trading occupations (see paragraphs 12 to 14 of this judgment), it must be pointed out that the recipient funds (Organic and Cancava) each administer a basic social security scheme founded on a solidarity mechanism. As the activity carried out by the funds concerned does not constitute an economic activity (Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK Bundesverband and Others  [2004] ECR I-2493, paragraph 47), the financing of that activity falls outside the scope of Article 87(1) EC.
55. Furthermore, in any event the national legislation at issue in no way establishes hypothecation of the TACA to the old-age insurance schemes for craftsmen and traders. Under Article 40-II of Law No 96-1160, the amount of the TACA allocated for financing the insurance schemes in question is determined each year by joint order of the competent Ministers. In view of the discretion enjoyed by those Ministers, it cannot be accepted that the revenue from the TACA directly affects the amount of the advantage granted to the recipient funds at issue (see Case C-175/02 Pape  [2005] ECR I-127, paragraph 16). Indeed it is apparent from the documents submitted to the Court that the amount allocated to Organic and Cancava is invariably set at EUR 45 730 000 each year, regardless of the revenue from the TACA.
56. Finally, on the basis of the evidence in the documents submitted to the Court, the TACA does not appear to be hypothecated to the measures financed by Fisac (see paragraphs 15 to 17 of this judgment) or the CPDC (see paragraphs 18 to 20 of this judgment) either. The discretion enjoyed by Fisac and the CPDC and the competent Ministers in respect of the allocation of funds deriving from the revenue from the TACA under Articles 8 of Decree No 95-1140 and 4 of Decree No 91-284 respectively precludes the existence of such hypothecation (see Pape , paragraph 16).