Namur-Les assurances du crédit SA contra Office national du ducroire y Estado belga.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Grévisse
• ECLI: ECLI:EU:C:1994:311
• Docket Number: C-44/93
• Date: 09 August 1994
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61993J0044

Judgment of the Court of 9 August 1994. - Namur-Les Assurances du Crédit SA v Office National du Ducroire and the Belgian State. - Reference for a preliminary ruling: Cour d'appel de Bruxelles - Belgium. - State aid - Existing or new aid - Widening of the field of activity of a public undertaking benefiting from advantages accoarded aby the State. - Case C-44/93.

European Court reports 1994 Page I-03829

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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State aid ° Existing and new aid ° Extension of the field of activity of a public undertaking providing export credit insurance and benefiting under unchanged rules from aid predating entry into force of the Treaty ° Classification of existing aid ° Obligation of prior notification ° None

(EEC Treaty, Art. 93(1) and (3))

Summary

Where a public establishment, which was only marginally involved in providing credit insurance for exports to other Member States, decides, with the approval of its supervisory authority, in future to carry on this activity without any geographical limit so that the public aid it receives under legislation predating entry into force of the Treaty will in future benefit widened activities, this cannot be regarded as a case of granting or alteration of aid, as envisaged in Article 93(3), where this decision is taken without any amendment of the aid scheme established by the legislation.

It follows that, in so far as aid granted in such circumstances is governed by rules on aid existing before entry into force of the Treaty, such aid is not subject to the obligation of prior notification and the prohibition on putting aid into effect laid down by Article 93(3) but must be kept under constant review, as provided for in Article 93(1).

A factor of legal uncertainty would be introduced if Member States were to be required to notify to the Commission and submit for its preventive review not only new aid or alterations of aid properly so-called granted to an undertaking in receipt of existing aid but also all measures which affect the activity of the undertaking and which may have an impact on the functioning of the common market, on competition or simply on the actual amount, over a specific period, of aid which is available in principle but which varies in amount according to the undertaking' s turnover.

Parties

In Case C-44/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d' Appel de Bruxelles for a preliminary ruling in the proceedings pending before that court between

Namur-Les Assurances du Crédit SA

and

(1) Office National du Ducroire,

(2) The Belgian State,

on the interpretation of Articles 92 and 93 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse (Rapporteur), M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: C.O. Lenz,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° Namur-Les Assurances du Crédit, the appellant in the main proceedings, by Pierre van Ommeslaghe, an advocate with a right of hearing before the Belgian Cour de Cassation,

° the Belgian State and the Office National du Ducroire, the respondent in the main proceedings, by, respectively, Jan Devadder, Director of Administration at the Ministry of Foreign Affairs, acting as Agent, and Georges van Hecke, an advocate with a right of hearing before the Cour de Cassation, and Bernard van de Walle de Ghelcke, of the Brussels Bar,

° the French Government, by Philippe Pouzoulet, Deputy Director for Legal Affairs in the Ministry of Foreign Affairs, acting as Agent, and by Catherine de Salins, Adviser on Foreign Affairs, acting as Deputy Agent,

° the Netherlands Government, by A. Bos, Legal Adviser, acting as Agent,

° the Commission of the European Communities, by Antonino Abate, Principal Legal Adviser, and Ben Smulders, of its Legal Service, both acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Namur-Les Assurances du Crédit, the Belgian State and the Office National du Ducroire, the French Government, represented by Jean-Marc Belorgey, Head of Mission at the Foreign Affairs Directorate at the Ministry of Foreign Affairs, acting as Agent, and the Commission at the hearing on 4 May 1994,

after hearing the Opinion of the Advocate General at the sitting on 22 June 1994,

gives the following

Judgment

Grounds

1 By judgment of 5 February 1993, received at the Court on 16 February 1993, the Cour d' Appel de Bruxelles (Court of Appeal, Brussels) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 92 and 93.

2 The questions were raised in proceedings initially between Namur-Les Assurances du Crédit SA (hereinafter "Namur AC") and Compagnie Belge d' Assurance Crédit SA (hereinafter "COBAC"), on the one hand, and the Office National du Ducroire (hereinafter "OND") and the Belgian State, on the other.

3 Under the Belgian Law of 31 August 1939 on the OND, that body, which is a public establishment responsible, in particular, for guaranteeing risks relating to foreign trade transactions, is accorded a number of advantages. These are: a State guarantee, formulated as a general principle, capital endowment of State income-producing bonds, the covering of its annual financial deficit by the State and exemption from the tax on insurance contracts and from corporation tax.

4 Since 1935, the OND and COBAC, the oldest private credit insurance undertaking in Belgium, have been linked by a re-insurance agreement under which the OND was to assume, by way of optional re-insurance, all or part of the commitments entered into by the company as primary insurer. That agreement, which did not place any particular restriction on the OND' s field of activity, was subsequently replaced by a cooperation agreement which provided that only in exceptional circumstances was the public establishment to insure commercial risks relating to exports of goods and services to western Europe, which were normally to be assumed by COBAC. The cooperation agreement was terminated by the OND at the end of 1988 on the ground that it constituted market-sharing prohibited under Community competition rules and, in 1989, the public establishment entered the market for credit risk insurance in western Europe with the approval of its supervising ministers.

5 COBAC and Namur AC, another private undertaking operating on the same market, considered that, in view of the advantages accorded by the State to the OND, the enlargement of its field of activity was of such a nature as to distort competition. They therefore lodged a complaint with the Commission alleging...