Ministère de l'Économie, des Finances et de l'Industrie v GEMO SA.
Date: 2003-11-20
21. To answer the question referred, the various elements of the concept of State aid in Article 92(1) of the Treaty must be considered. It is settled case-law that classification as aid requires that all the conditions set out in that provision are fulfilled (see Case C-482/99  France  v  Commission  [2002] ECR I-4397, paragraph 68, and Case C-280/00  Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I-7747, paragraph 74).
22. Article 92(1) of the Treaty defines State aid which is in principle incompatible with the common market as aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Member States.
23. First, according to settled case-law, it is not appropriate to distinguish between cases in which aid is granted directly by the State and those in which it is granted by a public or private body designated or established by that State (see Case 57/86  Greece  v  Commission  [1988] ECR 2855, paragraph 12, and Case C-379/98  PreussenElektra  [2001] ECR I-2099, paragraph 58).
24. However, for advantages to be capable of being categorised as aid within the meaning of Article 92(1) of the Treaty, they must, first, be granted directly or indirectly through State resources and, second, be imputable to the State ( France  v  Commission , cited above, paragraph 24).
28. Second, the notion of aid can thus encompass not only positive benefits such as subsidies, loans or direct investment in the capital of enterprises, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect (see inter alia Case C-156/98  Germany  v  Commission  [2000] ECR I-6857, paragraph 25, and Joined Cases C-328/99 and C-399/00  Italy and SIM 2 Multimedia  v  Commission  [2003] ECR I-4035, paragraph 35).
29. The supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as subsidies (see Joined Cases 67/85, 68/85 and 70/85  Van der Kooy  v  Commission  [1988] ECR 219, paragraphs 28 and 29; Case C-56/93  Belgium  v  Commission  [1996] ECR I-723, paragraph 10, and Case C-39/94  SFEI and Others  [1996] ECR I-3547, paragraph 62).
34. As to the argument of the French Government that the measure in question is part of a health and safety policy which supersedes individual interests, suffice it to observe that, according to settled case-law, Article 92(1) of the Treaty does not distinguish between measures of State intervention by reference to their causes or aims but defines them in relation to their effects (Case C-241/94  France  v  Commission  [1996] ECR I-4551, paragraph 20, and Case C-382/99  Netherlands  v  Commission  [2002] ECR I-5163, paragraph 61).
35. Third, Article 92(1) of the Treaty only requires the determination of whether, under a particular statutory scheme, a State measure is such as to favour   " certain undertakings or the production of certain goods"  over others. If so, the measure satisfies the condition of selectivity which defines State aid as laid down by that provision (Case C-143/99  Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 34, and Case C-409/00  Spain  v  Commission  [2003] ECR I-1487, paragraph 47).
39. The fact that the undertakings able to claim entitlement under that measure belong to different sectors of activity is not sufficient to call into question its selective nature and therefore, to rule out its classification as State aid ( Spain  v  Commission , cited above, paragraph 48).
41. In that regard, the Court has held that when aid granted by the State strengthens the position of an undertaking vis-à-vis other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (Case 730/79  Philip Morris  v  Commission  [1980] ECR 2671, paragraph 11, and Case C-310/99  Italy  v  Commission  [2002] ECR I-2289, paragraph 84).