Firma Sloman Neptun Schiffahrts AG v Seebetriebsrat Bodo Ziesemer der Sloman Neptun Schiffahrts AG.
Date: 1993-03-17
11 In the first place, it is important to note that, as the Court has consistently held (see, in particular, the judgment in Case 78/76 Steinike und Weinlig v Federal Republic of Germany [1977] ECR 595, paragraph 9), the intention of the Treaty in providing through Article 93 for aid to be kept under constant review and supervision by the Commission, is that the finding that an aid may be incompatible with the Common Market is to be determined, subject to review by the Court, by means of an appropriate procedure which it is the Commission' s responsibility to set in motion.
12 However, in the same judgment (paragraph 14) the Court stated that cases may come before national courts which give them cause to interpret and apply the concept of aid contained in Article 92 in order to determine whether or not State aid introduced without observance of the preliminary examination procedure provided for in Article 93(3) ought to have been subject to this procedure.
18 It is important to note that, under Article 92(1) of the EEC Treaty, any 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 is, in so far as it affects trade between Member States, incompatible with the Common Market.
19 As the Court held in its judgment in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele ([1978] ECR 25, paragraphs 23-25), only advantages which are granted directly or indirectly through State resources are to be regarded as State aid within the meaning of Article 92(1) of the EEC Treaty. The wording of this provision itself and the procedural rules laid down in Article 93 of the EEC Treaty show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question. The distinction between aid granted by the State and aid granted through State resources serves to bring within the definition of aid not only aid granted directly by the State, but also aid granted by public or private bodies designated or established by the State.
20 Therefore it is necessary to determine whether or not the advantages arising from a system such as that applicable to the ISR are to be viewed as being granted through State resources.
21 The system at issue does not seek, through its object and general structure, to create an advantage which would constitute an additional burden for the State or the abovementioned bodies, but only to alter in favour of shipping undertakings the framework within which contractual relations are formed between those undertakings and their employees. The consequences arising from this, in so far as they relate to the difference in the basis for the calculation of social security contributions, mentioned by the national court, and to the potential loss of tax revenue because of the low rates of pay, referred to by the Commission, are inherent in the system and are not a means of granting a particular advantage to the undertakings concerned.
25 It is important to note that, as the Court has consistently held (see the judgments in Case 149/77 Defrenne v Sabena III [1978] ECR 1365, paragraph 19, and Case 126/86 Giménez Zaera v Instituto Nacional de la Seguridad Social [1987] ECR 3697, paragraph 13), Article 117 of the EEC Treaty is essentially in the nature of a programme. It relates only to social objectives the attainment of which must be the result of Community action, close cooperation between the Member States and the operation of the Common Market.
26 Admittedly, the fact that the social policy objectives laid down in Article 117 are in the nature of a programme does not mean that they are devoid of any legal effect. They constitute an important aid, in particular for the interpretation of other provisions of the Treaty and of secondary Community legislation in social matters. The attainment of those objectives must nevertheless be the result of a social policy to be defined by the competent authorities (judgment in Case 126/86, cited above, paragraph 14).