Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS).
Date: 2006-09-07
29. In that respect, it should be pointed out that an aid measure within the meaning of Article 87(1) EC which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful. 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 prohibition on putting aid into effect, drawing all the necessary consequences under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (see, in particular, Joined Cases C-266/04 to C-270/04, C-276/04 and C-321/04 to C‑325/04 Distribution Casino France and Others  [2005] ECR I-9481, paragraph 30 and the case-law cited therein).
30. It is true that in a number of cases brought before it the Court of Justice has held that those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that charge or to obtain reimbursement (see, in particular, Banks , paragraph 80, and Distribution Casino France , paragraphs 42 and 44, and Joined Cases C-393/04 and C-41/05 Air Liquide  [2006] ECR I-0000, paragraph 43).
32. Each of those cases concerns an exemption for certain operators from a tax of general application and in which it is alleged that that exemption itself amounted to an aid measure.
36. In this respect, it should be noted that the Court observed in paragraph 19 of Ferring  that there are two directly competing distribution channels for medicines in France, that of the wholesale distributors and that of the pharmaceutical laboratories which sell directly to pharmacies. The Court further stated in that paragraph that a particular objective of the tax on direct sales is to restore the balance of competition between the two distribution channels for medicines, which, according to the French legislature, is distorted by the imposition of public service obligations on wholesale distributors alone. Finally, the Court added 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 was even reversed, with wholesale distributors recovering market share.
43. It is clear from that case-law that, where an aid measure of which the method of financing is an integral part has been implemented in breach of the obligation to notify, national courts must in principle order reimbursement of charges or contributions levied specifically for the purpose of financing that aid ( Van Calster , paragraph 54).
51. In the absence of Community rules governing the matter, as is the case in the main proceedings, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effects of Community law, provided that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness) (see, inter alia, Case C-276/01 Steffensen [2003] ECR I-3735, paragraph 60 and the case-law cited therein).
55. In those circumstances, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document.