Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer Zementwerke GmbH v Finanzlandesdirektion für Kärnten.
Date: 2001-11-08
17 It is settled case-law that 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 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, for example, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraphs 38 and 39).
19 Moreover, as regards the national court's alleged lack of jurisdiction, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure (Case 65/81 Reina [1982] ECR 33, paragraph 7; Case C-10/92 Balocchi [1993] ECR I-5105, paragraph 16; and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 24).
26 National courts are involved in the system for the review of State aid through the direct effect attributed to the prohibition on implementation of planned aid laid down in the last sentence of Article 93(3).
27 National courts must offer to individuals the certain prospect that all appropriate conclusions will be drawn from an infringement of that provision, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures (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).
33 By its second question, which should be dealt with first, the national court wishes to ascertain in substance whether national measures such as those at issue in the main proceedings constitute State aid within the meaning of Article 92 even if they apply to all undertakings in national territory, regardless of their activity.
34 As is apparent from the terms of Article 92(1) of the Treaty, an economic benefit granted by a Member State constitutes State aid only if, by displaying a degree of selectivity, it is such as to favour certain undertakings or the production of certain goods.
35 A State measure which benefits all undertakings in national territory, without distinction, cannot therefore constitute State aid.
36 The answer to the national court's second question must therefore be that national measures such as those at issue in the main proceedings do not constitute State aid within the meaning of Article 92 of the Treaty if they apply to all undertakings in national territory, regardless of their activity.
The first question
38 The concept of aid is more general than that of a subsidy. It embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13; and Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 34).
39 Applying those principles, the Court has held that a tariff charged to a category of undertakings for a source of energy at a lower level than that which would normally have been applied may be regarded as State aid if that tariff, adopted by a body subject to the control and direction of public authorities, is attributable to the Member State concerned and that State, unlike an ordinary economic operator, uses its powers to confer a pecuniary advantage on energy consumers by foregoing the profit which it could normally realise (see, to that effect, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, paragraph 28).
40 It follows from the foregoing considerations that the supply of energy on preferential terms to undertakings manufacturing goods, which is the end result of national legislation such as that at issue in the main proceedings, is capable of constituting State aid (see, to that effect, the judgment in SFEI and Others, cited above, paragraph 59).
41 For the application of Article 92 of the Treaty, it is irrelevant that the situation of the presumed beneficiary of the measure is better or worse in comparison with the situation under the law as it previously stood, or has not altered over time (see, to that effect, Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 10). The only question to be determined is whether, under a particular statutory scheme, a State measure is such as to favour certain undertakings or the production of certain goods within the meaning of Article 92(1) of the Treaty in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question (see, to that effect, Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraphs 28 to 31).
42 According to the case-law of the Court, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity (see Case 173/73 Italy v Commission [1974] ECR 709, paragraph 33, and Belgium v Commission, cited above, paragraph 33).
43 The Austrian Government points out that the introduction of the energy taxes and their rebate was not adopted as an isolated measure but in the context of the Strukturanpassungsgesetz of 1996, which provides for an overall package of measures intended to consolidate the budget. That package, composed of general socially balanced measures affecting all socio-professional groups, should be considered as a whole.
44 The Austrian Government also points out that, frequently in this type of overall package, new measures affecting a category of operators disproportionately are not fully applicable to that category during the implementation phase. The justification for restricting energy tax rebates to undertakings manufacturing goods lies in the very fact that they are proportionately more affected than others by those taxes.
45 According to the Austrian Government, since this type of measure is based on objective criteria and benefits a very large number of undertakings, it does not have the selective nature which would trigger application of Article 92(1) of the Treaty.
46 The Danish Government also submits that the Austrian rules at issue are general measures falling outside the scope of Article 92(1) of the Treaty.
47 First of all, it submits that the energy taxes at issue, which are of general application, are levied on the basis of objective criteria. The rebate rules form an integral part of the overall energy taxation system. Lastly, since the conditions to which the energy tax rebate is subject are directly determined by the legislature, the competent authorities may not exercise any discretion with regard to the choice of undertakings eligible for the rebate or alter its scope.
48 It must be observed, first, that neither the large number of eligible undertakings nor the diversity and size of the sectors to which those undertakings belong provide any grounds for concluding that a State initiative constitutes a general measure of economic policy (see, to that effect, Belgium v Commission, cited above, paragraph 32).
49 Second, any justification for the grant of advantages to undertakings whose activity consists primarily in the production of goods is not to be found in the nature or general scheme of the taxation system established under the Strukturanpassungsgesetz of 1996.
50 For one thing, undertakings supplying services may, just like undertakings manufacturing goods, be major consumers of energy and incur energy taxes above 0.35% of their net production value - the threshold above which undertakings manufacturing principally goods are eligible for the energy tax rebate.
51 There is nothing in the national legislation at issue to support the conclusion that the rebate scheme restricted to undertakings which primarily manufacture goods is a purely temporary measure enabling them to adapt gradually to the new scheme because they are disproportionately affected by it, as the Austrian Government maintains.
52 For another thing, the ecological considerations underlying the national legislation at issue do not justify treating the consumption of natural gas or electricity by undertakings supplying services differently than the consumption of such energy by undertakings manufacturing goods. Energy consumption by each of those sectors is equally damaging to the environment.
53 It follows from the foregoing considerations that, although objective, the criterion applied by the national legislation at issue is not justified by the nature or general scheme of that legislation, so that it cannot save the measure at issue from being in the nature of State aid.
54 Besides, as the Commission has rightly observed, the statement of reasons for the bill which led to the enactment of the national legislation at issue indicates that the advantageous terms granted to undertakings manufacturing goods were intended to preserve the competitiveness of the manufacturing sector, in particular within the Community.