Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe.
Date: 2017-06-27
24


In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 56 and the case-law cited).
25


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 57).
26


Concerning the last point, the Court recalls that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of the questions it is asking or, at the very least, that it explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 20).
27


According to the Court’s case-law, it is also important for the national court to set out the precise reasons why it was unsure as to the interpretation of EU law and why it considered it necessary to refer questions to the Court for a preliminary ruling (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 21).
36


A preliminary point to make is that, according to the Court’s settled case-law, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court of Justice to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 15 October 2015, Biovet, C‑306/14, EU:C:2015:689, paragraph 17 and the case-law cited).
38


The Court has consistently held that classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires all the conditions mentioned in that provision to be fulfilled. Thus, first, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgments of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53).
39


In addition, EU competition law and, in particular, the prohibition laid down in Article 107(1) TFEU concern the activities of undertakings (see, to that effect, judgments of 23 March 2006, Enirisorse, C‑237/04, EU:C:2006:197, paragraphs 27 and 28, and of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 88).
41


According to settled case-law of the Court, in the sphere of EU competition law, the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 107).
43


Moreover, in so far as the activity in question may be classified as ‘economic’, the fact that it is carried on by a religious community does not preclude the application of the rules of the Treaty, including those governing competition law (see, to that effect, judgment of 5 October 1988, Steymann, 196/87, EU:C:1988:475, paragraphs 9 and 14).
44


In order to determine whether the activities in question are those of an ‘undertaking’ within the meaning of EU competition law, it is necessary to ascertain what the nature of those activities is: each of the different activities of a given entity must thus be examined to determine whether it falls to be classified as an ‘economic activity’ (see, to that effect, judgments of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 75, and of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 25).
45


Any activity consisting in offering goods or services on a given market is an economic activity (judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 108).
46


The fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit (judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 27).
47


Services normally provided for remuneration are services that may be classified as ‘economic activities’. The essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (see, by analogy, judgment of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraphs 37 and 38 and the case-law cited).
48


Accordingly, courses provided by educational establishments financed essentially by private funds that do not come from the provider itself constitute services, since the aim of such establishments is to offer a service for remuneration (see, by analogy, judgments of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 40, and of 11 September 2007, Commission v Germany, C‑318/05, EU:C:2007:495, paragraph 69).
49


It is not necessary for that private financing to be provided principally by the pupils or their parents, as the economic nature of an activity does not depend on the service concerned being paid for by those for whom it is performed (see, by analogy, judgments of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 41, and of 11 September 2007, Commission v Germany, C‑318/05, EU:C:2007:495, paragraph 70).
50


The same cannot be said, however, of courses provided by certain establishments which are integrated into a system of public education and financed, entirely or mainly, by public funds. Indeed, in establishing and maintaining such a system of public education, which is, as a general rule, financed from public funds and not by pupils or their parents, the State is not seeking to engage in gainful activity, but is fulfilling its social, cultural and educational obligations towards its population (see, by analogy, judgments of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraph 39, and of 11 September 2007, Commission v Germany, C‑318/05, EU:C:2007:495, paragraph 68).
51


In that context, it is possible that a single establishment may carry on a number of activities, both economic and non-economic, provided that it keeps separate accounts for the different funds that it receives so as to exclude any risk of cross-subsidisation of its economic activities by means of public funds received for its non-economic activities.
65


Concerning the question whether the tax exemption at issue in the main proceedings must be regarded as conferring an advantage on its beneficiary, it should be recalled that, according to settled case-law of the Court, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings, or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions, are regarded as State aid (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 21).
66


Thus, measures which, in various forms, mitigate the charges that are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute aid (judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 101).
71


Nevertheless, according to settled case-law of the Court, ‘State aid’ does not cover State measures which differentiate between undertakings –– and which are, therefore, prima facie selective –– where that differentiation arises from the nature or overall structure of the system of which they are part, which it is for the Member State concerned to demonstrate (judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraph 42).
74


For it to be possible to classify advantages as aid within the meaning of Article 107(1) TFEU, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 16).
78


As regards the conditions relating to the effect of an economic advantage on trade between Member States and the distortion of competition that may be entailed, the Court recalls that for the purpose of categorising a national measure as State aid, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 102).
79


In particular, when aid granted by a Member State strengthens the position of certain undertakings as compared with that of other undertakings competing in trade between Member States, such trade must be regarded as affected by the aid. In that regard, it is not necessary that the beneficiary undertakings themselves be involved in trade between Member States. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 104).
80


With regard to the condition concerning distortion of competition, the point should be made that, in principle, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (judgment of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraph 66).
82


That said, in accordance with Article 2 of Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles [107 and 108 TFEU] to de minimis aid (OJ 2006 L 379, p. 5), read in the light of recital 8 thereof, aid not exceeding a ceiling of EUR 200000 over any period of three years is deemed not to affect trade between Member States and not to distort or threaten to distort competition; such measures are therefore excluded from the concept of State aid (judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 81).
85


In that regard, if the referring court were to have doubts or difficulties concerning the determination of the amount of aid which the Congregación may have received in respect of any possible economic activity, it may, in addition to seeking the cooperation of other bodies of the Member State concerned, request the assistance of the Commission for this purpose, in accordance with the principle of sincere cooperation, as is apparent in particular from paragraphs 77 to 96 of the Commission notice on the enforcement of State aid law by national courts (OJ 2009 C 85, p. 1) (see, to that effect, judgment of 13 February 2014, Mediaset, C‑69/13, EU:C:2014:71, paragraph 30).
86


The Spanish Government has argued in its observations before the Court that, in view of the fact that the Agreement of 3 January 1979 was concluded before the Kingdom of Spain’s accession to the European Union and that that agreement is the basis for the exemption at issue in the main proceedings, the exemption in any event constitutes existing aid. It should be recalled in that regard that in the context of the State aid control system, established in Articles 107 and 108 TFEU, the procedure differs according to whether the aid is existing or new. Whereas existing aid may, in accordance with Article 108(1) TFEU, be lawfully implemented so long as the Commission has made no finding of incompatibility, Article 108(3) TFEU provides that plans to grant new aid or alter existing aid must be notified, in due time, to the Commission and may not be put into effect until the procedure has resulted in a final decision (judgment of 26 October 2016, DEI and Commission v Alouminion tis Ellados, C‑590/14 P, EU:C:2016:797, paragraph 45).
87


Without prejudice to the Act of Accession of the Member State concerned, ‘existing aid’ is all aid which existed prior to the entry into force of the Treaty in that Member State, that is to say, aid schemes and individual aid put into effect before, and still applicable after, the entry into force of the Treaty (see, to that effect, judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 42).