Opinion of Advocate General Wahl delivered on 30 November 2017.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:929
• Date: 30 November 2017
• Celex Number: 62016CC0510
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-510/16

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 30 November 2017(1)

Case C‑510/16

Carrefour Hypermarchés SAS

Fnac Paris

Fnac Direct

Relais Fnac

Codirep

Fnac Périphérie

v

Ministre des finances et des comptes publics

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(State aid — Article 108(3) TFEU — Regulation (EC) No 659/1999 — Article 1(c) — Concept of ‘new aid’ — Regulation (EC) No 794/2004 — Article 4 — Notified aid schemes declared compatible with the internal market — Aid scheme for the film and audio-visual sectors — Significant rise in the revenue generated by a parafiscal tax financing an aid scheme as compared to the estimates notified to the Commission — Concept of ‘increase in the budget of an authorised aid scheme exceeding 20%’ — Relationship with duty of prior notification)

1. Does a substantial increase in the fiscal revenue generated by a tax which finances an authorised aid scheme, as compared to the estimates originally given to the European Commission in the context of a notification under State aid rules, give rise to ‘new aid’ under Article 108(3) TFEU? That is the gist of the questions presently submitted to the Court for a preliminary ruling.

2. In a nutshell, at stake is the proper construction of the concept of ‘alterations to existing aid’. Consideration of that concept may prompt the Court to reflect more generally on the relationship between, on the one hand, Article 108(3) TFEU and Article 1(c) of Regulation No 659/1999 (2) and, on the other hand, Article 4 of Regulation No 794/2004. (3)

3. Before doing so however, the Court will have to reiterate the conditions under which taxes fall within the scope of the provisions of the FEU Treaty concerning State aid. It will then be for the referring court to determine whether those conditions are met.

I. Legal framework

A. Regulation No 659/1999

4. Article 1 of Regulation No 659/1999 (‘Definitions’) provides:

‘For the purpose of this Regulation:

(a) “aid” shall mean any measure fulfilling all the criteria laid down in Article [107(1) TFEU];

(b) “existing aid” shall mean:

…

(ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;

…

(c) “new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;’

B. Regulation No 794/2004

5. According to Article 1(1) of Regulation No 794/2004 (‘Subject matter and scope’), ‘this Regulation sets out detailed provisions concerning the form, content and other details of notifications and annual reports referred to in [Regulation No 659/1999]. It also sets out provisions for the calculation of time limits in all procedures concerning State aid and of the interest rate for the recovery of unlawful aid’.

6. Under Article 4 of Regulation No 794/2004 (‘Simplified notification procedure for certain alterations to existing aid’):

‘1. For the purposes of Article 1(c) of [Regulation No 659/1999], an alteration to existing aid shall mean any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market. However an increase in the original budget of an existing aid scheme by up to 20% shall not be considered an alteration to existing aid.

2. The following alterations to existing aid shall be notified on the simplified notification form set out in Annex II:

(a) increases in the budget of an authorised aid scheme exceeding 20%;

…’

II. Facts, procedure and the questions referred

7. This request for a preliminary ruling originates in an action brought by Carrefour Hypermarchés SAS (‘Carrefour’), Fnac Direct, Relais Fnac, Codirep, Fnac Paris and Fnac Périphérie (taken together: ‘the applicants’) seeking an order for repayment of the tax paid on the sale or hire of video recordings for the private use of the public (‘the tax at issue’) by Carrefour during the years 2008 and 2009, and by the remaining applicants during the years 2009, 2010 and 2011.

8. The tax at issue, together with a tax on cinema tickets and on television services (taken together: ‘the three taxes’), funds a State aid scheme for the film and audio-visual sectors (‘the aid scheme at issue’). That scheme is administered by an independent administrative body, the Centre national de la cinématographie et de l’image animée (National Centre for Cinematography and the Moving Image, ‘the CNC’).

9. By Decision of 22 March 2006, the Commission declared the aid scheme at issue compatible with the internal market. (4) Subsequently, by Decision of 10 July 2007, the Commission approved an amendment to the method of financing of the aid scheme at issue, consisting, inter alia, of modified rules on the taxation of television services. (5) By Decision of 20 December 2011, the Commission approved an extension of the aid scheme at issue until 31 December 2017. (6)

10. In August 2012, the Cour des comptes (Court of Auditors, France) issued a report on the management and financing of the CNC. (7) According to that report, the revenue from the three taxes increased by almost 60% between 2007 and 2011, amounting to 46.3% after adjustment for the changes in accounting practices. According to that report, the main reason therefor was a great increase in revenue from the tax on television services, namely, from EUR 362 million in 2007 to EUR 631 million in 2011, in particular as a result of a reform of the tax base undertaken in March 2007, reform which was taken into account by the Commission in its Decision of 10 July 2007.

11. The applicants initially brought actions before the Tribunal administratif de Montreuil (Administrative Court, Montreuil, France), which were dismissed by judgments of 19 July 2012, 20 June 2013 and 18 July 2013. The appeals brought against those judgments were, in turn, dismissed by the Cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles) by judgments of 20 December 2013 and 4 March 2014. The main action is an appeal on a point of law against those latter judgments brought before the Conseil d’État (Council of State).

12. The applicants argue, inter alia, that the Cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles) erred in not holding the rise in revenue to constitute an increase in budget of the aid scheme exceeding 20% within the meaning of Article 4 of Regulation No 794/2004. Consequently, they submit that a new notification ought to have been made under Article 108(3) TFEU.

13. In reply, the ministre des Finances et des Comptes publics (Minister for Finance and Public Accounts, France) takes the view that no further notification was necessary, failing any changes that affected the actual substance of the original scheme. He argues moreover that changes, if any, must be assessed in light of the aid actually granted to the beneficiaries and not of the increase in the resources allocated, which may be placed in the CNC’s reserve or reclaimed by the State.

14. Entertaining doubts as to the correct interpretation of Article 108(3) TFEU and Article 4 of Regulation No 794/2004, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) In a situation in which an aid scheme is financed by allocated resources, where a Member State has regularly notified the Commission of legal changes having a significant impact on that scheme prior to their implementation, and in particular of changes relating to the method by which the scheme is financed, does a substantial increase in revenue from fiscal resources allocated to the scheme, compared to the projections submitted to the [Commission], constitute a significant change within the meaning of [Article 108 TFEU], which would require a new notification to be made?

(2) In the same situation, how is Article 4 of [Regulation No 794/2004] to be applied, pursuant to which an increase in the original budget of an existing aid scheme exceeding 20% constitutes a change to that aid scheme and, in particular:

(a) how does it apply in combination with the obligation to notify the Commission in advance of an aid scheme laid down in [Article 108(3) TFEU]?

(b) if exceeding the 20% threshold of the original budget of an existing aid scheme provided for under Article 4 of [Regulation No 794/2004] requires a new notification, must that threshold be assessed in relation to the amount of expenditure allocated or to the expenditure actually granted to the beneficiaries, excluding the sums placed in the reserve or those having been made subject to a levy for the benefit of the State?

(c) assuming that observance with the 20% threshold must be assessed in relation to the expenditure dedicated to the aid scheme, must such an assessment be made by comparing the overall level of expenditure in the approval decision with the overall budget subsequently allocated to all aid schemes granted by the body responsible for such allocations, or by comparing the levels notified under each of the categories of aid identified in that decision with that body’s corresponding budget heading?’

15. Written observations have been lodged by the applicants, the French, Greek and Italian Governments, and by the Commission. At the hearing held on 21 September 2017, the applicants, the French Government and the Commission presented oral argument.

III. Analysis

A. Admissibility

16. The Italian Government considers that the questions referred might be hypothetical and thus inadmissible, first, as the validity of the Commission Decisions of 22 March 2006, 10 July 2007 and of 20 December 2011 (‘the Commission Decisions’) has not been called into question and, second, due to the absence of a link of allocation between the tax at issue and the monies paid out under the aid scheme at issue.

17. I...