Pearle BV, Hans Prijs Optiek Franchise BV and Rinck Opticiëns BV v Hoofdbedrijfschap Ambachten.

• Jurisdiction: European Union
• Celex Number: 62002CC0345
• ECLI: ECLI:EU:C:2004:145
• Date: 11 March 2004
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-345/02

OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 11 March 2004(1)


Case C-345/02

Pearle and Others




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

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

I – Introduction 1. This reference for a preliminary ruling made by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) raises issues which affect many aspects of the Community rules on State aid: the definition of aid, the relationship between the advantage conferred and the means of financing it, the scope of the obligation to notify, the role of the de minimis rule, and the consequences of failure to notify in national law, inter alia. 2. Paradoxically, the facts of this case do not, at first sight, correspond to any of the sets of circumstances which the legislature was able to envisage when providing the Community with the means to protect itself against disproportionate State interventionism capable of distorting intra-Community competition: the subject-matter of the main proceedings is an action for a declaration that measures which made possible the launch of a collective advertising campaign to promote the services of opticians, which was organised by a trade association, are invalid, and for repayment of the levies paid by the affiliated undertakings to finance that campaign. The appellants in the main proceedings are not competitors who have been adversely affected by the alleged system of aid, but its theoretical beneficiaries. They are using the remedies available for guaranteeing the effectiveness of Community law in order to challenge before the courts a measure which they do not consider favourable to their financial interests. II – Applicable law A – Community law 3. Article 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) provides: ‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’ 4. Article 93 of the EC Treaty (now, after amendment, Article 88 EC) provides that: ‘1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the common market. 2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission. … 3. 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 87, 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. 5. According to the first paragraph of Commission Notice 96/C 68/06 on the de minimis rule for State aid: (2) ‘Clearly, any financial assistance given by the State to one firm distorts or threatens to distort, to a greater or lesser extent, competition between that firm and its competitors which have received no such aid; but not all aid has an appreciable effect on trade and competition between Member States. This is particularly true where the amount of aid involved is small … .’ 6. According to the second paragraph of the Notice, Article 92(1) of the EC Treaty may be deemed not to apply to grants of aid up to a maximum amount of ECU 100 000 (now EUR 100 000) over a three-year period beginning when the first de minimis aid is granted. That threshold applies to all kinds of non-excluded aid, irrespective of its form or the objective pursued, with the exception of export aid. B – Netherlands law 7. The Wet op de bedrijfsorganisatie (Law on the Organisation of Business; hereinafter, ‘WBO’) of 27 February 1950 governs the tasks, composition, working methods, financial affairs and supervision of trade associations which are given personal responsibility for the organisation and development of their respective sectors of activity. 8. Under Article 71 of the WBO, such trade associations, as public bodies, must take into account not only the common interest of the affiliated undertakings, but also the public interest. 9. Under Article 73 of the WBO, the governing bodies of the trade associations are to be composed of an equal number of representatives from employers’ and workers’ organisations respectively. 10. The legislature has conferred on the trade associations the powers relevant to the performance of the tasks entrusted to them. Accordingly, Article 93 of the WBO allows their governing bodies to make the bye-laws which they deem necessary to perform their task, both in the interests of the undertakings in the economic sector concerned, and in matters relating to the working conditions of employees. Such bye-laws are approved by the Sociaal-Economische Raad (economic and social council), provided that they do not impose restrictions on competition (Article 93(5) of the WBO). 11. Article 126 of the WBO allows the associations, in order to meet their costs, to adopt bye-laws imposing levies on their members. General levies finance the everyday operation of the organisation, whereas ‘compulsory earmarked levies’ serve specific purposes. Under Article 127, such levies may be collected by way of an enforcement order. 12. Moreover, the Wet houdende administratieve rechtspraak bedrijfsorganisatie (Law on administrative proceedings concerning the organisation of business), of 16 September 1954, as amended, lays down rules governing contentious administrative proceedings concerning trade associations. III – The main proceedings 13. Pearle B.V., Hans Prijs Optiek franchise B.V. and Rinck Opticiëns B.V. (hereinafter: ‘Pearle and the other appellants’ or simply ‘Pearle’) are companies established in the Netherlands which trade in the optical sector. In that capacity, they are affiliated, in accordance with the WBO, (3) to the Hoofdbedrijfschap Ambachten (Central Industry Board for Skilled Trades; hereinafter: ‘the HBA’), a trade association governed by public law. 14. At the request of a private opticians’ association, the Nederlandse Unie van Opticiens (hereinafter: ‘NUVO’), of which Pearle and the other appellants were then members, the HBA imposed on its members, for the first time in 1988, a ‘compulsory earmarked levy’ (4) to finance a collective advertising campaign for the undertakings in the sector. That levy was also to be used to finance the creation of an advisory committee attached to the governing body of the HBA, the Commissie Optiekbedrijf (Optical Trade Committee). 15. The total payable by Pearle and the other appellants amounted to NLG 850.00 per establishment. The bye-laws which introduced the charge at issue, renewed annually until 1998, were never challenged by the affiliated undertakings. 16. Pearle and the other appellants none the less took the view that the collective advertising campaigns organised by the HBA were of benefit primarily to their competitors, as a result of which they had to bear an unnecessary burden on their own advertising budgets. 17. On 29 March 1995, Pearle and the other appellants brought an action against the HBA before the Rechtbank te’ s-Gravenhage (District Court, The Hague) seeking annulment of the bye-laws which introduced the levies in question and consequential reimbursement of the amounts paid. 18. According to the then plaintiffs, the services provided by means of the advertising campaigns constituted State aid within the meaning of Article 92(1) of the EC Treaty, so that the bye-laws which provided for their financing ought to have been notified to the Commission under Article 93(3). In the absence of such notification, the aid measures had no legal basis. 19. The court of first instance dismissed the plaintiffs’ arguments, which judgment was upheld on appeal. The plaintiffs therefore lodged an appeal in cassation before the Hoge Raad der Nederlanden. IV – Questions referred 20. In the course of that appeal, the Hoge Raad decided, on 27 September 2002, to stay proceedings and refer to the Court of Justice for a preliminary ruling the following questions: ‘1) Is a scheme such as that under consideration, in which levies are imposed to finance collective advertising campaigns, to be regarded as (part of a measure of) aid within the meaning of Article 92(1) of the EC Treaty, and must the plans to implement it be notified to the Commission under Article 93(3) of the EC Treaty? Does that apply only to the benefit derived from the scheme, in the form of the organisation and provision of collective advertising campaigns, or does it also apply to the method of financing it, such as a bye-law instituting levies and/or the decisions imposing levies based thereon? Does it make any difference whether the collective advertising campaigns are offered to...