Pearle BV, Hans Prijs Optiek Franchise BV and Rinck Opticiëns BV v Hoofdbedrijfschap Ambachten.
Date: 2004-07-15
29. The Court’s case-law makes it clear that where the method by which aid is financed, particularly by means of compulsory contributions, forms an integral part of the aid measure, consideration of the latter by the Commission must necessarily also take into account that method of financing the aid (Joined Cases C-261/01 and Case C-262/01 Van Calster and Others  [2003] ECR I-0000, paragraph 49, and Joined Cases C-34/01 to C-38/01 Enirisorse  [2003] ECR I-0000, paragraph 44).
30. In such a case, the notification of the aid provided for in Article 93(3) of the Treaty must also cover the method of financing, so that the Commission may consider it on the basis of all the facts.  If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible when, if the Commission had been aware of its method of financing, it could not have been so declared ( Van Calster and Others , paragraph 50).
31. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the obligations imposed on the Member States by Article 93(3) of the Treaty (see, to this effect, Case C-354/90 Fédération nationale du Commerce Extérieur des Produits Alimentaires et Syndicat national des négociants et transformateurs de saumon  [1991] ECR I-5505, paragraph 12, and Case C-17/91 Lornoy and Others  [1992] ECR I-6523, paragraph 30).  A national court may have cause to interpret the concept of aid contained in Article 92(1) of the Treaty in order to determine whether a State measure has been introduced contrary to that provision (see Steinike & Weinlig , paragraph 14; Case C-189/91 Kirsammer-Hack   [1993] ECR I-6185, paragraph 14, and SFEI , paragraph 49).  The obligation to notify and the prohibition of implementation laid down in Article 93(3) of the Treaty apply in fact to plans to grant or alter aid within the meaning of Article 92(1) of the Treaty.
32. It must also be pointed out that, according to settled case-law, classification as aid requires that all the conditions set out in that provision should be fulfilled (see Case C-142/87 Belgium  v Commission (‘Tubemeuse’)  [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain  v Commission  [1994] ECR I-4103, paragraph 20; 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).
33. Article 92(1) of the Treaty lays down four conditions.  First, there must be an intervention by the State or through State resources.  Second, the intervention must be liable to affect trade between Member States.  Third, it must confer an advantage on the recipient.  Fourth, it must distort or threaten to distort competition ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 75).
34. With regard to the first condition, it is clear from established case-law that there is no need to draw any distinction according to whether the aid is granted directly by the State or by public or private bodies established or appointed by that State (Case 57/86 Greece  v Commission  [1988] ECR 2855, paragraph 12, PreussenElektra , paragraph 58, and Case C-126/91 GEMO  [2003] ECR I-0000, paragraph 23).
35. 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 (Case C-303/88 Italy  v Commission  [1991] ECR I-1433, paragraph 11, France v Commission , paragraph 24, and GEMO,  paragraph 24.
36. Even if the Board is a public body, it does not in the circumstances of the case appear that the advertising campaign was funded by resources made available to the national authorities.  On the contrary, the judgment making the reference makes it clear that the monies used by the Board for the purpose of funding the advertising campaign were collected from its members who benefited from the campaign by means of compulsory levies earmarked for the organisation of that advertising campaign. Since the costs incurred by the public body for the purposes of that campaign were offset in full by the levies imposed on the undertakings benefiting therefrom, the Board’s action did not tend to create an advantage which would constitute an additional burden for the State or that body (see Joined Cases C-72/91 and C-73/91 Sloman Neptun  [1993] ECR I-887, paragraph 21).
37. Furthermore, the file clearly shows that the initiative for the organisation and operation of that advertising campaign was that of the NUVO, a private association of opticians, and not that of the Board.  As the Advocate General pointed out in paragraph 76 of his Opinion, the Board served merely as a vehicle for the levying and allocating of resources collected for a purely commercial purpose previously determined by the trade and which had nothing to do with a policy determined by the Netherlands authorities.
38. This case is not on all fours with that giving rise to the judgment in Steinike & Weinlig .  First, the Fund concerned in the latter case was financed both by direct State subsidies and by contributions from the member undertakings the rate and basis of levying which were set by the law establishing the Fund.  Second, the Fund in question served as a vehicle for the implementing of a policy determined by the State, namely, the promotion of national agriculture and forestry and of the national food industry.  Likewise, in Case 259/85 France  v Commission  the DEFI committee, to which were remitted the proceeds of the parafiscal charges levied pursuant to a decree of the French Government on supplies of textile goods in France, was implementing actions decided on by that government for the support of the textile and clothing industries in France.