CJEC, 5th chamber, October 9, 1984, No 91-83

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By two judgments of 13 April 1983, which were received at the court on 24 May and 7 July 1983, the Gerechtshof (regional court of appeal), Amsterdam, referred to the court for a preliminary ruling pursuant to article 177 of the EEC treaty four questions concerning the interpretation of articles 92 and 93 of the treaty.

2. The questions were raised in the course of two disputes between Heineken Brouwerijen bv, the plaintiff in the main proceedings, and the Inspecteurs der Vennootschapsbelasting (inspectors of corporation taxes) of Amsterdam and of Utrecht, concerning tax payable by Heineken for the period 1977 to 1979.

3. In 1972, in order to alleviate the problems arising from the congestion of urban regions situated in the western part of the Netherlands, known as the "Randstad-Nederland", the Netherlands Government submitted to parliament a bill entitled the "wet selectieve investeringsregeling" (law enacting a selective investment scheme), which introduced a levy on most new investments in those regions. The wet selectieve investeringsregeling was adopted in 1974, but by the time it was brought into force its scope had been severely restricted, and it was suspended in 1976.

4. On 16 February 1977 the Netherlands Government tabled before the parliament a bill entitled the "wet investeringsrekening" (law setting up an investment fund), which provided for a system of investment allowances in the form of tax relief. In principle those allowances included a basic allowance, accorded for all investments, and selective allowances, including a "general regional allowance", to be granted only for investments made outside the randstad.

5. By a letter of 18 February 1977 the Netherlands Government notified to the Commission the draft of the wet investeringsrekening pursuant to article 93 (3) of the treaty. By a letter of 26 May 1977 the Commission replied that it had initiated the procedure provided for in article 93 (2) of the treaty against that draft law, in respect of the system of selective allowances and, in particular, the general regional allowance, on the ground that it did not specify the region to which it applied. Following discussions between the Commission and the Netherlands Government, the Government decided not to introduce the general regional allowance and incorporated it in the basic allowance. It informed the Commission of that decision by a letter of 16 March 1978 and, on the following 21 April, the Commission notified the Netherlands Government that the procedure initiated with regard to the wet investeringsrekening had been terminated.

6. In the course of the wet investeringsrekening's passage through parliament, it was decided to bring back into force the levy provided for by the wet selectieve investeringsregeling. To that end, certain amendments to the wet selectieve investeringsregeling intended to coordinate the two sets of rules were inserted in the wet investeringsrekening. In addition it was provided in article 36 of the wet investeringsrekening that, for a transitional period pending the reintroduction of the levy imposed under the wet selectieve investeringsregeling, investment allowances granted in the form of tax relief were to be reduced in respect of investments made in the randstad. The wet investeringsrekening was adopted on 29 June 1978 and came into force with retroactive effect from 24 May 1978. The suspension of the wet selectieve investeringsregeling was revoked as from 29 June 1978.

7. In 1978 and 1979 the plaintiff in the main proceedings made two investments in the randstad district, both of which attracted the allowances provided for by the wet investeringsrekening. However, in respect of one of the investments, the allowance was reduced pursuant to the transitional rule contained in article 36 of the wet investeringsrekening and, in respect of the other, the levy provided for by the wet selectieve investeringsregeling was imposed.

8. Before the gerechtshof, Heineken claimed that it was entitled to the full allowances for those two investments and that they should not be subject to the levy. It maintained that, taken together, the measures adopted had in fact introduced aid which had the same effect as that which had been envisaged initially in the wet investeringsrekening and in respect of which the Commission had raised objections. Consequently, in Heineken' s view, the wet selectieve investeringsregeling, the differential rate established under article 36 of the wet investeringsrekening and the actual effects of that law combined with those of the first must be regarded, individually or jointly, as an aid, within the meaning of article 92 of the treaty, put into effect without the prior notification required under article 93 (3) of the treaty.

9. The gerechtshof took the view that, in order to give judgment, it required an interpretation, in that respect, of articles 92 and 93 of the treaty. It therefore stayed the proceedings and referred to the court the following questions, which are the same in both cases :

1. Should the wet selectieve investeringsregeling, the amendments made to the law in view of its combined effect with the wet investeringsrekening, the differential rate adopted in article 36 of the wet investeringsrekening or the actual combined effect of those laws be regarded, individually or jointly, as aid in the sense indicated in the grounds of this judgment?

2. Must article 93 (3) of the treaty be interpreted as meaning that notification to the Commission by a member state of plans to grant or alter aid must be immediately and plainly made known to each interested party?

3. Must such notification also take place in respect of amendments made to the bill introducing the aid during its passage through parliament?

4. If an amendment to a measure granting aid which is about to be introduced is not notified to the Commission, whereas the draft measure to which the amendment is made has been notified to the Commission, must the prohibition in the last sentence of article 93 (3) of the treaty against the implementation of such measures be considered to apply and, if so, does it cover the whole of the measure eventually adopted or only the part of the measure adopted in that amendment?

10. In proceedings under article 177 of the treaty, the court may not rule on the interpretation of national laws and regulations or on the conformity of such measures with community law ; it may only provide the national court with the criteria for interpretation based on community law which will enable that court to solve the legal problem with which it is faced. In this instance, it is therefore necessary to provide the gerechtshof with the criteria for interpretation which will enable it to decide whether the plaintiff in the main proceedings is justified in relying upon the Netherlands Government' s failure to comply with the provisions of the treaty on state aid in order to prevent the tax authorities from applying the laws in question to it.

11. Those provisions may be relied upon by individuals only if the national measures in question constitute aid within the meaning of article 92 and if the procedure for review provided for in article 93 (3) has not been complied with (judgment of 22 March 1977 in case 78-76 steinike and weinlig (1977) ecr 595). Where it is apparent from the facts of the case that the procedural rules were followed, it is in any event unnecessary to inquire into the nature of the national measure concerned. Consequently, the court considers it appropriate to examine in the first place the questions designed to establish whether the procedural rules laid down in article 93 (3) of the treaty were complied with.

The second question

12. By this question the gerechtshof asks whether the notification to the Commission by a member state of a plan to grant aid must be immediately and clearly made known to all the interested parties.

13. According to article 93 (3) of the treaty,

'' The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the Common Market having regard to article 92, it shall without delay initiate the procedure provided for in paragraph 2. The member state concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.''

14. That text makes no reference to an obligation of the type mentioned in the second question and that is consistent with the objectives of the aforesaid provisions and the context within which they fall. The sole purpose of the first sentence of article 93 (3) is to provide the Commission with the opportunity to review, in sufficient time and in the general interest of the communities, any plan to grant or alter aid. At the same time, the interests of any individuals concerned are protected by article 93 (2), which requires the Commission, when it initiates the procedure provided for in that paragraph, to give notice to the interested parties to submit their comments.

15. In reply to the second question it must therefore be stated that article 93 (3) of the treaty does not require that the notification to the Commission by a member state of plans to grant or alter aid should be immediately made known to all the interested parties ; such an obligation falls upon the Commission alone when it initiates the procedure provided for in article 93 (2).

The third question

16. In this question the gerechtshof asks whether the obligation to inform the Commission of plans to grant aid which is imposed on member states by the first sentence of article 93 (3) also applies to alterations made to such plans in the course of parliamentary debate.

17. It is sufficient to note that article 93 (3) is not confined solely to the grant of aid, but also covers the alteration thereof, and that the aforesaid aim of the first sentence of that provision could not be achieved if the Commission were informed only of the initial plans and not of subsequent alterations. However, it must be added that such information may be supplied to the Commission in the course of the consultations which take place between the Commission and the member state concerned following the initial notification.

18. In reply to the third question it must therefore be stated that the obligation provided for in the first sentence of article 93 (3) to inform the Commission of plans to grant or alter aid does not apply solely to the initial plan, but also covers subsequent alterations to that plan ; such information may be supplied to the Commission in the course of the consultations which take place following the initial notification.

The fourth question

19. The fourth question concerns the prohibition, laid down by the last sentence of article 93 (3), on the putting into effect of the proposed measures before the procedures prescribed in article 93 (2) and (3) have resulted in a final decision. The gerechtshof asks whether that prohibition applies to a plan for aid which has been duly notified in its initial version but subsequently altered without the Commission being informed of the alteration and whether, in such a case, the prohibition applies solely to the part of the aid which has been introduced by that alteration.

20. As the court has already emphasized, inter alia in its order of 20 September 1983 (case 171-83 r Commission v France (1983) ecr 2621), the final sentence of article 93 (3) is the means of safeguarding the machinery for review laid down by that article, which, in turn, is essential for ensuring the proper functioning of the Common Market. The prohibition laid down by that article is intended to ensure that the aid measures do not come into effect before the Commission has had a reasonable period in which to consider the plan in detail and, if necessary, to initiate the procedure provided for in article 93 (2).

21. It follows that the prohibition applies to the aid programme in its entirety and in the final version adopted by the national authorities. If the initial plan has been altered, the last sentence of article 93 (3) therefore applies to the plan as altered. Where the plan has been notified and the Commission has not raised any objections to it, but the member state concerned has made alterations of which the Commission has not been informed, the provision precludes the putting into effect of the aid programme in its entirety. The position may be different only where the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial plan.

22. In reply to the fourth question it must therefore be stated that the prohibition on the putting into effect of aid measures, which is laid down in the last sentence of article 93 (3), applies to the proposed aid programme in its entirety and in the final version adopted by the national authorities. If the plan initially notified has in the meantime undergone alterations of which the Commission has not been informed, the prohibition applies to the plan as altered, unless the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial plan ; in that case, the prohibition applies only to the aid measure introduced by the alteration.

23. In the light of the replies given to the second, third and fourth questions, the court takes the view that it is unnecessary to consider the first question.

Costs

24. The costs incurred by the Netherlands Government, by the Government of the Italian Republic and by the Commission, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties in the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decisions on costs is a matter for that court.

On those grounds,

The court (fifth chamber),

In answer to the questions referred to it by the gerechtshof, Amsterdam, by judgments of 13 April 1983, hereby rules :

1. Article 93 (3) of the treaty does not require that the notification to the Commission by a member state of plans to grant or alter aid should be immediately made known to all the interested parties ; such an obligation falls upon the Commission alone when it initiates the procedure provided for in article 93 (2).

2.the obligation provided for in the first sentence of article 93 (3) to inform the Commission of plans to grant or alter aid does not apply solely to the initial plan, but also covers subsequent alterations to that plan ; such information may be supplied to the Commission in the course of the consultations which take place following the initial notification.

3.the prohibition on the putting into effect of aid measures, which is laid down in the last sentence of article 93 (3), applies to the proposed aid programme in its entirety and in the final version adopted by the national authorities. If the plan initially notified has in the meantime undergone alterations of which the Commission has not been informed, the prohibition applies to the plan as altered, unless the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial plan ; in that case, the prohibition applies only to the aid measure introduced by the alteration.