Ferring SA v Agence centrale des organismes de sécurité sociale (ACOSS).
Date: 2001-11-22
15 As the Court has already held, the concept of aid is wider than that of a subsidy because it embraces not only positive contributions, such as subsidies themselves, 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 C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13, and Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 34).
16 The expression aid, for the purposes of Article 92(1) of the Treaty, necessarily designates advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose (see, in particular, Joined Cases C-52/97 to C-54/97 Viscido and Others [1998] ECR I-2629, paragraph 13).
17 Nevertheless, the fact that undertakings are treated differently does not automatically imply the existence of an advantage for the purposes of Article 92(1) of the Treaty. There is no such advantage where the difference in treatment is justified by reasons relating to the logic of the system (see, to that effect, Case C-353/95 P Tiercé Ladbroke v Commission [1997] ECR I-7007, and particularly paragraphs 33 and 35).
19 It is important to note that there are two directly competing medicine distribution channels in France, that of the wholesale distributors and that of the pharmaceutical laboratories which sell directly to pharmacies. Furthermore, it is common ground that a particular objective of the tax on direct sales is to restore the balance of competition between the two medicine distribution channels, which, according to the French legislature, had been distorted by the imposition of public service obligations on wholesale distributors alone. It is also common ground that, following the introduction of Law No 97-1164 and the direct sales tax, not only did the growth of direct sales recorded in the immediately preceding years cease, but the trend even reversed, with wholesale distributors recovering market share.
21 It is also appropriate to observe that when an advantage conferred by a Member State strengthens the position of a class of undertakings in relation to other undertakings competing in intra-Community trade the latter must be regarded as affected by that advantage (see, inter alia, Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11). Since the pharmaceuticals markets are characterised by the presence of a large number of multinational undertakings which distribute their products in the Member States, there can be no doubt that a measure such as the tax on direct sales will influence trade patterns between the Member States.
26 In this connection it is appropriate to recall the finding of the Court of Justice in relation to an indemnity provided for by Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23). The indemnity in question was financed in accordance with the principle that the polluter pays, in the case in point by way of a charge imposed on products transformed into waste oils, or on waste oils, not exceeding the actual yearly costs. The indemnity could be granted to undertakings collecting and/or disposing of waste oils as compensation for their obligations to collect and/or dispose of the products offered to them by holders. The Court held that an indemnity of that type did not constitute aid within the meaning of Articles 92 et seq. of the Treaty, but rather consideration for the services performed by the collection or disposal undertakings (Case 240/83 ADBHU [1985] ECR 531, paragraph 18).
27 In like manner, provided that the tax on direct sales imposed on pharmaceutical laboratories corresponds to the additional costs actually incurred by wholesale distributors in discharging their public service obligations, not assessing wholesale distributors to the tax may be regarded as compensation for the services they provide and hence not State aid within the meaning of Article 92 of the Treaty. Moreover, provided there is the necessary equivalence between the exemption and the additional costs incurred, wholesale distributors will not be enjoying any real advantage for the purposes of Article 92(1) of the Treaty because the only effect of the tax will be to put distributors and laboratories on an equal competitive footing.
29 The answer must therefore be that Article 92 of the Treaty is to be interpreted as meaning that, because it is charged only on direct sales of medicines by pharmaceutical laboratories, a measure such as the tax introduced by Article 12 of Law No 97-1164 amounts to State aid to wholesale distributors only to the extent that the advantage in not being assessed to the tax on direct sales of medicines exceeds the additional costs that they bear in discharging the public service obligations imposed on them by national law.
Interpretation of Article 90(2) of the Treaty
32 If it is the case that the advantage for wholesale distributors in not being assessed to the tax on direct sales of medicines exceeds the additional costs that they bear in discharging the public service obligations imposed on them by national law, that advantage, to the extent that it exceeds the additional costs mentioned, cannot, in any event, be regarded as necessary to enable them to carry out the particular tasks assigned to them.