Déménagements-Manutention Transport SA (DMT).
Date: 1999-06-29
9 First of all, it has been consistently held that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, inter alia, Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14). As the Advocate General has pointed out in points 15 to 17 of his Opinion, those requirements are met in the main proceedings because the Tribunal de Commerce, in its adjudicating capacity, once seised by the investigating judge, is required to deliver a judgment on the solvency of the undertaking concerned.
10 As regards the relevance of the questions referred to the Court, it is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case 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. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C-105/94 Celestini [1997] ECR I-2971, paragraph 21).
15 According to the case-law of the Court, the Commission's powers in that regard do not preclude the national court from referring to the Court of Justice a question on the interpretation of the concept of aid (see Case C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 14). It is therefore appropriate to give a reply to the first question referred by the Tribunal de Commerce.
16 However, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, the intention of the Treaty is that the finding that an aid may be incompatible with the common market is to be made, subject to review by the Court, by means of an appropriate procedure which it is the Commission's responsibility to set in motion (see Case C-354/90 Fédération National du Commerce Extérieur des Produits Alimentaires et Syndicat National des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 9). It follows that the Court has no jurisdiction to reply to the second question referred by the Tribunal de Commerce.
The first question
18 It is common ground that in the case in the main proceedings the payment facilities which the ONSS granted DMT were granted through State resources for the purposes of Article 92(1) of the Treaty, inasmuch as the ONSS is a public body established by the Belgian State which has been made responsible, under State supervision, for collecting mandatory employers' and workers' social security contributions and managing the social security system (see, to that effect, Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993] ECR I-887, paragraph 19).
19 As regards the concept of aid, it is settled case-law that that concept is wider than that of a subsidy because it embraces not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking (see Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13). Where a public body with responsibility for collecting social security contributions tolerates late payment of such contributions, its conduct undoubtedly gives the recipient undertaking a significant commercial advantage by mitigating, for that undertaking, the burden associated with normal application of the social security system.
21 However, it should be noted that any interest or penalties for late payment which an undertaking experiencing very serious financial difficulties might have to pay in return for generous payment facilities, such as those which, according to the order for reference, the ONSS granted to DMT over a period of eight years, cannot wholly undo the advantage gained by that undertaking.
22 Secondly, it is settled case-law that in order to determine whether a State measure constitutes aid for the purposes of Article 92 of the Treaty, it is necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions (Case C-342/96 Spain v Commission [1999] ECR I-2459, paragraph 41).
24 It should be noted in that connection that the ONSS did not, in granting the payment facilities in question, act as a public investor whose conduct must, in accordance with settled case-law (see, in particular, Case C-42/93 Spain v Commission [1994] ECR I-4175, paragraph 14), be compared to the conduct of a private investor pursuing a structural policy - whether general or sectoral - guided by the longer term prospects of profitability of the capital invested. Indeed, as the Advocate General has pointed out in points 34 to 36 of his Opinion, the ONSS must be held to have acted, vis-à-vis DMT, as a public creditor which, like a private creditor, is seeking to obtain payment of sums owed to it by a debtor in financial difficulties (see, to that effect, the judgment in Spain v Commission, cited above, paragraph 46).
27 It follows from the wording of Article 92(1) of the Treaty that general measures which do not favour only certain undertakings or the production of only certain goods do not fall within that provision. By contrast, where the body granting financial assistance enjoys a degree of latitude which enables it to choose the beneficiaries or the conditions under which the financial assistance is provided, that assistance cannot be considered to be general in nature (see, to that effect, Case C-241/94 France v Commission [1996] ECR I-4551, paragraphs 23 and 24).
30 Consequently, the answer to the first question must be that payment facilities in respect of social security contributions granted in a discretionary manner to an undertaking by the body responsible for collecting such contributions constitute State aid for the purposes of Article 92(1) of the Treaty if, having regard to the size of the economic advantage so conferred, the undertaking would manifestly have been unable to obtain comparable facilities from a private creditor in the same situation vis-à-vis that undertaking as the collecting body.