Société Régie Networks v Direction de contrôle fiscal Rhône-Alpes Bourgogne.

• Jurisdiction: European Union
• Celex Number: 62007CJ0333
• ECLI: ECLI:EU:C:2008:764
• Docket Number: C-333/07
• Date: 22 December 2008
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-333/07

Société Régie Networks

v

Direction de contrôle fiscal Rhône-Alpes Bourgogne

(Reference for a preliminary ruling from the cour administrative d’appel de Lyon)

(State aid – Aid scheme to support local radio stations – Financed by a parafiscal charge on advertising companies – Favourable decision by the Commission at the conclusion of the preliminary stage of the review procedure under Article 93(3) of the EC Treaty (now Article 88(3) EC) – Aid that may be compatible with the common market – Article 92(3) of the EC Treaty (now, after amendment, Article 87(3) EC) – Decision challenged on the ground that it is unlawful – Obligation to state the reasons on which the decision is based – Assessment of the facts –Whether the parafiscal charge is compatible with the EC Treaty)

Summary of the Judgment

1. Preliminary rulings – Admissibility – Limits – Manifestly irrelevant questions and questions regarding hypothetical problems in a context which precludes any useful answer

(Art. 234 EC)

2. State aid – Planned aid – Examination by the Commission – Assessment of the validity of a Commission decision taken at the end of the preliminary investigation stage by reference to the information available at the time the decision was adopted

(EC Treaty, Arts 93(3) and 190 (now Arts 88(3) EC and 253 EC))

3. State aid – Examination by the Commission – Assessment of legality by reference to the information available at the time the decision was adopted

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

4. State aid – Planned aid – Notification of the Commission – Scope of the obligation

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

5. Preliminary rulings – Assessment of validity – Declaration that a Commission decision on State aid is invalid – Effects – Temporal limitation

(Arts 88 EC, 231, second para., EC and 234 EC)

1. Questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law 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 give a useful answer to the questions submitted to it. The Court may decide, in particular, not to give a preliminary ruling determining the validity of a Community act where it is quite obvious that that determination, requested by the national court, bears no relation to the actual facts of the main action or its purpose.

(see paras 46-47)

2. A Commission decision on State aid adopted at the end of the preliminary stage of the review procedure under Article 93(3) of the Treaty (now Article 88(3) EC), which is intended merely to allow it to form a prima facie opinion on the partial or complete compatibility of the aid in question without opening the formal investigation procedure under Article 93(2), and which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the common market.

A statement of reasons that is succinct but nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties in assessing the compatibility of the aid scheme at issue with the common market, in view of the nature and context of the measure in which it appears, must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 190 of the Treaty (now Article 253 EC), the question of whether the reasoning is well founded being a separate matter. Moreover, such a decision cannot be declared unlawful pursuant to Article 190 of the Treaty on the ground that it fails expressly to identify one of the categories of exception provided for in Article 92(3) of the Treaty (now, after amendment, Article 87(3) EC).

(see paras 64-65, 70-72)

3. The legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted, especially where the decision in question is a decision not to raise objections to an aid scheme adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 93(3) of the Treaty (now Article 88(3) EC). Since, when making such a decision, the Commission is required to assess the future effects of an aid scheme at a time when such effects cannot be accurately foreseen, that decision can be declared unlawful only if it is manifestly incorrect in the light of the information available to the Commission when it was adopted.

(see paras 81-82)

4. The method by which State aid is financed may render the entire aid scheme which it is intended to finance incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing. Quite to the contrary, consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid in a case where that method forms an integral part of the measure. Accordingly, the notification of the aid provided for in Article 93(3) of the Treaty (now Article 88(3) EC) must also cover the method by which it is financed, 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 with the common market, when, if the Commission had been aware of its method of financing, it could not have been so declared. The Commission’s assessment falls within its exclusive competence, subject to review by the Community judicature.

(see paras 89-90, 94)

5. Where it is justified by overriding considerations of legal certainty, the second paragraph of Article 231 EC, which is also applicable by analogy to a reference under Article 234 EC for a preliminary ruling on the validity of a measure adopted by the Community institutions, confers on the Court a discretion to decide, in each particular case, which specific effects of such a measure must be regarded as definitive.

In a judgment finding that a Commission decision declaring an aid scheme compatible with the common market is invalid, the Court can suspend, for a given period, the effects of the declaration that the decision is invalid pending the adoption of a new decision by the Commission under Article 88 EC and exclude from those limits undertakings which brought legal proceedings or made an equivalent complaint regarding the levying of the charge that forms an integral part of the scheme.

(see paras 121, 128, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

22 December 2008 (*)

(State aid – Aid scheme to support local radio stations – Financed by a parafiscal charge on advertising companies – Favourable decision by the Commission at the conclusion of the preliminary stage of the review procedure under Article 93(3) of the EC Treaty (now Article 88(3) EC) – Aid that may be compatible with the common market – Article 92(3) of the EC Treaty (now, after amendment, Article 87(3) EC) – Decision challenged on the ground that it is unlawful – Obligation to state the reasons on which the decision is based – Assessment of the facts –Whether the parafiscal charge is compatible with the EC Treaty)

In Case C‑333/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Cour administrative d’appel de Lyon (France), made by decision of 12 July 2007, received at the Court on 17 July 2007, in the proceedings

Société Régie Networks

v

Direction de contrôle fiscal Rhône-Alpes Bourgogne,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), K. Lenaerts, A. Ó Caoimh and J.-C. Bonichot, Presidents of Chambers, K. Schiemann, P. Kūris, E. Juhász, L. Bay Larsen and P. Lindh, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 April 2008,

after considering the observations submitted on behalf of:

– Régie Networks, by B. Geneste and C. Medina, avocats,

– the French Government, by G. de Bergues and B. Messmer, acting as Agents,

– the Commission of the European Communities, by J.-P. Keppenne and B. Martenczuk, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 June 2008,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the validity of the decision of the Commission of the European Communities of 10 November 1997 not to raise any objections to the new version of an aid scheme to support local radio stations (State aid No N 679/97 – France) (‘the contested decision’), a brief notice of which was published in the Official Journal of the European Communities (OJ 1999 C 120, p. 2).

2 The reference was made in the course of an action brought by Régie Networks, a company constituted under French law, for reimbursement of a sum which it paid by way of a parafiscal charge levied on advertisements broadcast on sound radio and television for 2001.

Legal context

3 Article 80 of Law No 86-1067 of 30 September 1986 on freedom of communication (JORF of 1 October 1986, p. 11755), as amended by Article 25 of Law No 89-25 of 17 January 1989 (JORF of 18 January 1989, p. 728) and Article 27 of Law No 90-1170 of 29 December 1990 (JORF of 30 December 1990, p. 16439), provides as follows:

‘Sound radio broadcasting services in respect of which the commercial revenue...