Pearle BV and Others

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(State aid – Concept of aid – Collective advertising campaigns in favour of one sector of the economy – Financing by means of a special contribution payable by undertakings in that sector – Action taken by a body governed by public law)

Summary of the Judgment

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

1.Where the method by which State 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. In such a case, the notification of the aid provided for in Article 93(3) of the Treaty (now Article 88(3) EC) 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.

(see paras 29-30)

2.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 (now Article 88(3) EC). In order to determine whether a State measure has been introduced contrary to that provision, a national court may have cause to interpret the concept of aid contained in Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC).

(see para. 31)

3.On a proper construction of Articles 92(1) and 93(3) of the Treaty (now Article 88(3) EC), bye-laws adopted by a trade association governed by public law for the purpose of funding an advertising campaign organised for the benefit of its members and decided on by them, through resources levied from those members and compulsorily earmarked for the funding of that campaign, do not constitute an integral part of an aid measure within the meaning of those provisions and it was not necessary for prior notification of them to be given to the Commission since it has been established that that funding was carried out by means of resources which that trade association, governed by public law, never had the power to dispose of freely.

(see para. 41, operative part)

JUDGMENT OF THE COURT (First Chamber) 15 July 2004 (1)

(State aid – Definition of aid – Collective advertising campaigns in favour of one sector of the economy – Financing by means of a special contribution payable by undertakings in that sector – Action taken by a body governed by public law)

In Case C-345/02,

REFERENCE to the Court of Justice under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings before that court between

Pearle BV, Hans Prijs Optiek Franchise BV, Rinck Opticiëns BV

Hoofdbedrijfschap Ambachten,

on the interpretation of Articles 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) and 93(3) of the EC Treaty (now Article 88(3) EC),

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

– Pearle BV, Hans Prijs Optiek Franchise BV and Rinck Opticiëns BV, by P.E. Mazel, advocaat,

– Hoofdbedrijfschap Ambachten, by R.A.A. Duk, advocaat,

– the Netherlands Government, by S. Terstal, acting as Agent,

– the Commission of the European Communities, by J. Flett and H. van Vliet, acting as Agents,

after hearing the oral observations of the Netherlands Government, represented by H.G. Sevenster, acting as Agent, and of the Commission, represented by H. van Vliet, at the hearing on 29 January 2004,

after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

In accordance with Articles 4 and 5 of that law, natural or legal persons whose interests are directly affected by a decision taken by a trade association may bring an action before the College van Beroep voor het bedrijfsleven (administrative tribunal for commercial and industrial matters, governed by Netherlands law) if they consider the decision to be contrary to a provision of law of general application. Article 33(1) of that law provides that the action must be brought within 30 days of the communication or adjournment of the decision or of the enforcement of the act.

By virtue of the rule of Netherlands case-law on formal legal force, where an action for recovery of a sum not due is brought before the civil court, the latter must start from the principle that the decision on the basis of which the payment was made was consistent with the law, so far as both the mode of its adoption and its content are concerned, if the interested party has failed to make use of an administrative means of redress that was open to him.

The dispute in the main proceedings and the questions referred for a preliminary ruling

Pearle BV, Hans Prijs Optiek franchise BV and Rinck Opticiëns BV (‘the appellants in the main proceedings’) are companies established in the Netherlands and trading in optical equipment. In that capacity and pursuant to the WBO, they joined the Board, a trade association governed by public law.

In 1988, at the request of a private opticians’ association, the Nederlandse Unie van Opticiëns (‘the NUVO’) of which the appellants in the main proceedings were then members, the Board for the first time imposed on its members, pursuant to a bye-law adopted on the basis of Article 126 of the WBO, a ‘compulsory earmarked levy’ to finance a collective advertising campaign for opticians’ businesses. A similar levy was subsequently imposed every year, at least until 1993.

The levy thus imposed on the appellants in the main proceedings came to HFL 850 for each establishment. They introduced no administrative action challenging the levy decisions addressed to them by the Board.

On 29 March 1995 the appellants brought proceedings against the Board before the Rechtbank ’s-Gravenhage (District Court of The Hague), seeking annulment of the bye-laws introducing the compulsory earmarked charges at issue and an order that the Board should repay the sums not due paid on the basis of those bye-laws.

They maintained that the services provided by means of the advertising campaign constituted State aid within the meaning of Article 92(1) of the Treaty and that the Board’s bye-laws introducing the levies intended to finance that aid were unlawful, since they had not been notified to the Commission pursuant to Article 93(3) of the Treaty.

By an interim decision the court of first instance accepted in part the appellants’ arguments. That decision was set aside on appeal, whereupon the appellants appealed on a point of law to the Hoge Raad der Nederlanden.

Those being the circumstances, the Hoge Raad decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Concerning the questions referred for a preliminary ruling

Introductory remarks

By its three first questions, which are to be considered together, the national court seeks in substance to ascertain whether the funding of advertising campaigns by the Board for the benefit of opticians’ businesses can be regarded as State aid within the meaning of Article 92(1) of the Treaty and whether, if necessary taking into account the de minimis rule, the Board’s bye-laws imposing levies on its members in order to fund those campaigns ought – as components of an aid scheme – to have been notified to the Commission in accordance with Article 93(3) of the Treaty. In that manner it seeks enlightenment as to whether the compulsory earmarked levies imposed on the appellants in the main proceedings are, because they are directly linked to what might be unnotified aid, also vitiated by unlawfulness with the result that they must theoretically give rise to reimbursement.

In the fourth and fifth questions the issue is whether the practical effect of Article 93(3) of the Treaty militates against the application of the rule of Netherlands case-law on formal legal force to circumstances such as those in the present case.

Concerning the first, second and third questions

Observations submitted to the Court of Justice

The appellants in the main proceedings and the Commission submit that the Board’s funding of an advertising campaign for the benefit of opticians’ businesses constitutes State aid for the purposes of Article 92(1) of the Treaty and ought to have been notified to the Commission in accordance with Article 93(3) of the Treaty. They explain that the concept of aid referred to in Article 92(1) of the Treaty includes the advantages granted by the State directly and those granted through a public or private body, such as the Board, designated or established by that State (Case C-379/98 PreussenElektra [2001] ECR I-2099).

A measure taken by a public authority which benefits certain undertakings or certain products does not cease to be characterised as aid just because it is financed in part or in whole by contributions imposed by the public authority and levied on the undertakings concerned (Case 78/76 Steinike & Weinlig [1977] ECR 595, and Case 259/85 France v Commission [1987] ECR 4393, paragraph 23). A measure could thus fall within the ambit of Article 92(1) of the Treaty, even if it was wholly funded by payments of that kind.

According to the appellants and the Commission, the Netherlands Government ought to have notified to the Commission all the necessary information about the system established. That information ought to have related both to the organisation of the advertising campaign and to the methods by which it was funded (Case 47/69 France v Commission [1970] ECR 487).

The Board contends that the collective advertising campaign which it supported does not amount to State aid for the purposes of the Treaty. When the authorities mount such a campaign for the benefit of a particular form of trade, trade craft or industry and fund that action by means of a compulsory earmarked charge to which the participants contribute up to the amount of the benefit which they derive from it, there is in practical terms no component of funding from State resources.

In the Netherlands Government’s submission, a bye-law adopted by a body governed by public law which, at the request of a private association, introduces charges for the purpose of funding a collective advertising campaign, does not amount to State aid within the meaning of Article 92(1) of the Treaty. It observes that, according to the Court’s case-law (Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, and PreussenElektra), only those advantages that are financed directly or indirectly by State resources are to be regarded as aid within the meaning of that provision. The Netherlands Government points out that, in this case, although the Board, because of its statutory powers, acted as a vehicle for the levying and allocation of the resources generated in aid of an objective previously settled by the trade, that body could not dispose of its resources freely.

It is provided in Article 93(3) of the Treaty that the Commission is to be informed of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market, it is without delay to initiate the procedure provided for in Article 93(2) of the Treaty, and the Member State concerned may not put its proposed measures into effect until that procedure has resulted in a final decision.

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).

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).

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.