Société Régie Networks v Direction de contrôle fiscal Rhône-Alpes Bourgogne.
Date: 2008-12-22
46. According to settled case‑law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22 and the case‑law cited).
47. The Court may decide, in particular, not to give a preliminary ruling determining the validity of a Community act where it is quite obvious that that determination, requested by the national court, bears no relation to the actual facts of the main action or its purpose (see, inter alia, Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 75 and the case‑law cited).
60. The presumption of relevance enjoyed by references for a preliminary ruling has not therefore been rebutted by the objections raised by the Commission (see by analogy, inter alia, van der Weerd and Others , paragraphs 22 and 23).
63. According to settled case‑law, the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Case C‑390/06 Nuova Agricast  [2008] ECR I-0000, paragraph 79, and Joined Cases C‑341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others  [2008] ECR I‑0000, paragraph 88 and the case‑law cited).
64. As regards, first of all, the measure at issue, the contested decision was adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 93(3) of the EC Treaty, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete compatibility of the aid in question without opening the formal investigation procedure under Article 93(2) of the EC Treaty, which is designed to enable the Commission to be fully informed of all the facts pertaining to that aid (see to that effect, inter alia, Nuova Agricast , paragraph 57 and the case‑law cited).
65. Such a decision, which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the common market (Case C‑225/91 Matra  v Commission [1993] ECR I‑3203, paragraph 48).
70. While, admittedly, that statement of reasons is succinct, it nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties in assessing the compatibility of the aid scheme at issue with the common market. It follows from this that the Commission based its conclusion essentially on the ground that intra‑Community trade should not be affected by that scheme to an extent that was contrary to the common interest.
71. In the light of the case‑law cited at paragraphs 63 to 65 above, such a statement of reasons must, in view of the nature and context of the measure in which it appears, be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 190 of the EC Treaty, the question of whether the reasoning is well founded being a separate matter.
78. According to case‑law, in the application of Article 92(3) of the EC Treaty, the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments which must be made in a Community context. In that context, judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying that the facts relied on are accurate and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (see, inter alia, Joined Cases C‑75/05 P and C-80/05 P Germany and Others v Kronofrance  [2008] ECR I‑0000, paragraph 59 and the case‑law cited).
81. The legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted, especially where the decision in question is a decision not to raise objections to an aid scheme adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 93(3) of the EC Treaty, such as the contested decision (see, to that effect, Nuova Agricast , paragraphs 54 and 55).
89. Thus, the Court has held that the method by which aid is financed may render the entire aid scheme which it is intended to finance incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing. 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 (see to that effect, inter alia, van Calster and Others , paragraph 49, and Case C‑345/02 Pearle and Others [2004] ECR I‑7139, paragraph 29).
93. While the question whether there is a relationship of competition between the persons liable to pay a charge and the recipients of the aid which that charge is used to fund may be an important factor in the context of the Commission’s substantive examination as to whether aid is compatible with the common market, it cannot be an additional criterion determining the scope of the obligation to notify aid laid down in Article 93(3) of the EC Treaty.
94. Where a charge constitutes the means by which an aid scheme such as that at issue in the main proceedings is financed, it is clearly in the Community interest that the Member State notifies that scheme, including the method of financing which forms an integral part of it, so that the Commission may have available to it all the information necessary to assess the compatibility of that measure with the common market, an assessment which falls within its exclusive competence, subject to review by the Community judicature (see to that effect, inter alia, Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 52 and the case‑law cited).
95. The effectiveness of that exclusive power would be at risk of being compromised if, in order to exercise it, the Commission had to rely on each Member State carrying out a prior unilateral assessment as to whether the persons liable to pay a charge and the recipients of aid financed by the charge were in competition with each other.
96. That applies all the more so in a context involving an aid scheme and a charge such as those at issue in the main proceedings, since that scheme concerns aid whose recipients operate in a market which cannot be regarded as being clearly distinct from that in which the persons liable to pay the charge also operate.
97. The answer to the question whether there is a relationship of competition between those aid recipients and parties liable to pay the charge may, in many cases, be open to discussion, as demonstrated by the divergence of opinion expressed in the course of these preliminary reference proceedings, both in the written observations and at the oral hearing. In order to provide such an answer, it is necessary to conduct a detailed investigation of the characteristics of the markets in question as part of the substantive review of the aid which the Commission alone can carry out, subject to review by the Community judicature.
98. It is necessary to determine whether the charge on advertising companies should in any event have been taken into account by the Commission in its review of the aid scheme concerned on account of the fact that, in the light of the case‑law referred to at paragraph 89 above, it should be considered to form an integral part of the radio broadcasting aid scheme which that charge was used to finance.
99. For a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the charge is necessarily allocated for the financing of the aid and 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 (see, inter alia, Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium  [2006] ECR I‑5293, paragraph 46 and the case‑law cited).
100. In the circumstances of the present case, it is apparent from Articles 3 and 6 of Decree No 97-1263 that the net revenue from the charge on advertising companies finances the FSER, from which the FSER Committee pays the radio broadcasting aid. That charge is levied specifically and solely for the purpose of financing the aid at issue (see, by analogy, van Calster and Others , paragraph 55).
102. The charge on advertising companies is also of a fundamentally different nature from that of the charges financing the aid measures at issue in certain judgments of the Court relied on by the Commission, in which the Court found that the charge was not hypothecated to the aid measure in question under the relevant national rules (Case C‑175/02 Pape  [2005] ECR I‑127, and Distribution Casino France and Others ).
104. In the present case, the net revenue from the charge on advertising companies is used wholly and exclusively to finance radio broadcasting aid and therefore has a direct impact on the amount of that aid. While it is true that the aid is allocated by the FSER Committee, it is not disputed that that body does not have the power to allocate the funds available for purposes other than that of such aid.
121. In that regard, it must be noted, first, that, where it is justified by overriding considerations of legal certainty, the second paragraph of Article 231 EC, which is also applicable by analogy to a reference under Article 234 EC for a preliminary ruling on the validity of a measure adopted by the Community institutions, confers on the Court a discretion to decide, in each particular case, which specific effects of such a measure must be regarded as definitive (see to that effect, inter alia, Case C‑228/99 Silos  [2001] ECR I‑8401, paragraph 35 and the case‑law cited).
124. Next, where the Court rules, in proceedings under Article 234 EC, that a measure adopted by a Community authority is invalid, its decision has the legal effect of requiring the competent Community institutions to take the necessary measures to remedy that illegality, as the obligation laid down in Article 233 EC in the case of a judgment annulling a measure applies in such a situation by analogy (see, inter alia, Joined Cases C‑120/06 P and C-121/06 P FIAMM and Others v Council and Commission  [2008] ECR I-0000, paragraph 123 and the case‑law cited).