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 do not share the concerns expressed by the Italian Government.
18. Questions relating to EU law enjoy a presumption of relevance. A ruling on a question referred by a national court may be refused only where it is quite obvious that the interpretation of EU law that is 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 enable it to give a useful answer to the questions submitted to it. (8)
19. As for the first concern raised by that government, the fact that no action for annulment has been brought against the Commission decisions concerning the aid scheme at issue does not render this case hypothetical. Even assuming that, by their action, the applicants seek to circumvent those decisions, the referring court has not questioned their validity. Those decisions therefore remain binding. (9)
20. As for the second concern, although it is true that the referring court does not appear to have taken a position on the question whether the revenue generated by the tax at issue is necessarily allocated for the financing of the aid scheme at issue, it cannot be excluded. It is therefore not obvious to me that the questions referred are hypothetical. (10)
21. The request for a preliminary ruling is therefore admissible.
B. Question 1
1. Preliminary observations
22. Notwithstanding my observations regarding the admissibility of this request for a preliminary ruling, the fact remains that the questions referred by the Conseil d’État (Council of State) can be understood in several ways.
23. A firstreading of the first question referred is that it concerns, at least implicitly, the preliminary issue of whether the three taxes fall within the scope of the State aid rules (‘the first reading’). Indeed, while the tenor of the first question referred might, on the one hand, seem to confirm the view that the referring court considers that to be the case, question 2(b), on the other hand, calls that assumption into question by distinguishing between the expenditure allocated (or, put differently, the tax revenue generated) and the expenditure granted (the aid paid out). In any event, the first reading springs to mind considering the nature of the dispute pending before the referring court. In that regard, the French and Italian Governments consider that the three taxes do not fall within the scope of those rules.
24. A second reading of the first question referred might be that the referring court in fact takes the view that the three taxes do not fall within the scope of the State aid rules, but nevertheless still wishes to know whether a significant increase in the tax revenue intended to finance an authorised aid scheme, as compared to the estimates given in the context of the notification, amounts to an alteration of that scheme which, in turn, triggers the duty of notification under Article 108(3) TFEU, even though the conditions governing that aid scheme remain unchanged (‘the second reading’).
25. Lastly, a third reading of the first question referred is also possible. According to that reading, the referring court considers the three taxes to fall within the scope of the State aid rules. On that basis, it wishes to know whether a significant increase in the tax revenue financing an authorised aid scheme, as compared to the estimates given in the context of the notification, amounts to an alteration of that scheme which, in turn, triggers the duty of notification under Article 108(3) TFEU, even though the conditions governing that aid scheme remain unchanged (‘the third reading’).
26. In the following, I shall address each of the three readings of the first question referred in that order. In that regard, as the Commission recognised at the hearing, the position to be taken on the third reading of the first question referred presupposes that the three taxes do indeed fall within the scope of the State aid rules.
2. First reading: when do taxes come within the scope of the rules on State aid in the FEU Treaty?
27. Taxes do not fall within the scope of the provisions of the FEU Treaty on State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure. In order for a tax to form an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market. (11)
28. For instance, an increase in tax from which certain undertakings are exempted may not be challenged under the State aid rules if the revenue from that increase in tax has no direct impact on the monies paid out. (12) Moreover, where the competent authorities may exercise discretion, under the applicable legislation, in allocating the revenue from the tax to various purposes, that revenue has no direct impact on the amount of aid as it may be used to finance other measures under that legislation which are not State aid. (13) Similarly, where the national legislation simply indicates an amount to be paid out to the beneficiaries within a range regardless of the revenue from a tax which finances it, and that amount is then determined individually by the competent authorities on a discretionary basis, there is no connection between the revenue from the tax and the amount paid out. (14) Conversely, the direct impact of a tax on the amount of the aid cannot be ruled out where the body responsible for payment thereof does not have the power to allocate the funds available for purposes other than that of the aid. (15)
29. Against that backdrop, if the three taxes do not form an integral part of the aid scheme at issue, then the question whether an increase in revenue amounts to an alteration to existing aid becomes moot.
30. The French Government recognises that a binding provision of French law exists which requires the revenue from the three taxes to be allocated to the aid scheme at issue. (16) However, that government does not consider the revenue raised by those taxes to have a direct and automatic influence on the amount of aid paid out under that scheme.
31. In the first place, the French Government considers that the Commission Decision of 22 March 2006 indicates that the Commission was of the same view, given, inter alia, that the figures submitted were estimates, and that the Commission did not monitor the evolution of that revenue even though it did require the French authorities to produce annual reports on the monies paid out under the aid scheme at issue.
32. In the second place, that government argues that the net revenue from the three taxes is not entirely allocated to the financing of the aid scheme at issue. Under the applicable French rules, (17) the Parlement (Parliament, France) may alter or abolish the allocation of the revenue generated by those taxes to the CNC and redistribute it back into the general budget of the French State, by means, for instance, of a capping threshold (‘écrêtement’). Moreover, if the balanced budget of the CNC displays a surplus, that surplus is fed into a reserve. Contrariwise, if the budget is negative for a given year, the CNC may take funds out of that reserve.
33. In the third place, the revenue generated by the three taxes is not exclusively allocated to the aid scheme at issue, as the CNC has the power to allocate it to other ends, including operating costs.
34. In the fourth place, the maximum annual amount of aid that can be paid out under the aid scheme at issue does not depend on the amount of revenue generated by the three taxes, as shown in the annual reports submitted by the French authorities to the Commission. In that regard, other revenue also serves to fund the aid scheme at issue, such as licence fees received by the CNC for maintaining the cinema and audio-visual registers and the granting of a cinematographic licence, professional savings and State subventions.
35. In the fifth place, aid is paid out in accordance with objective criteria which do not depend on the revenue generated by the three taxes and which are described in the Decision of 22 March 2006.
36. As for the French Government’s first argument, if it considers a tax to form an integral part of a planned aid scheme, the Commission must take that tax into account when assessing the compatibility of that scheme with the internal market. In its Decisions of 22 March 2006 and of 10 July 2007, the Commission did not explicitly analyse the former issue, that is to say, whether the three taxes formed an integral part of the aid scheme at issue (as for the latter issue of compatibility, see below at points 61 to 65). At the hearing, it argued that this was implied. However, whether that is true (or adequate) is, at any rate, of no consequence, as the question whether a tax forms an integral part of an aid measure relates to the concept of ‘aid’ and thus does not, in itself, depend on the Commission’s view thereof, given that it does not bind the Court.
37. As for the fourth argument, the fact that the aid scheme at issue might also be co-financed by revenue hailing from other sources does not prevent the three taxes from forming an integral part of the aid scheme at issue.
38. The remaining arguments raised by the French Government do, however, warrant serious consideration. Although the concept of a ‘tax forming an integral part of an aid measure’ is an autonomous concept of EU law which does not depend on the position taken in national law, (18) and the Court may therefore itself consider and apply that concept to the circumstances of the main proceedings, (19) it seems to me that, as the hearing tended to confirm, those arguments cannot be confirmed or invalidated without further analysis and consideration of the legal and factual situation prevailing in France. In the context of these proceedings, that requires the involvement of the referring court. If that court concurs with the description given by the French Government of the three taxes, then I would not consider them to form an integral part of the aid scheme at issue. (20)
39. In that connection, the Commission took the view at the hearing that, unlike in the situation prevailing during the material period, the link between the three taxes and the aid scheme at issue was severed at some undisclosed point in time subsequent thereto due to repeated clawbacks, by the competent French budgetary authorities, of accumulated tax revenue. Moreover, the Commission dismissed the relevance of the possibility for the CNC of putting tax revenue in the reserve, as it considered the placing of such funds in a reserve to be a deferred payment of aid which did not affect the link between the three taxes and the aid scheme.
40. However, those arguments do not lead me to believe that the three taxes form an integral part of the aid scheme at issue. On the contrary.
41. First, temporally speaking, it is inconsistent to discount, as the Commission essentially does, the placing of tax revenue in the reserve as merely a deferred aid payment — thus potentially extending de facto the material period beyond 2011 — yet at the same time to place decisive emphasis on the moment after the material time when the relevant French budgetary authority began reclaiming, on a regular basis, that revenue for the benefit of the general budget. A distinction between the placing of the tax revenue in the CNC’s reserve and the act of clawing it back also seems artificial. It is not implausible that the former merely sequentially preceded the latter, with the result that the two operations would not be quite as distinct as the Commission would have. In addition, the Commission did not explain why it is relevant to distinguish between exercising the power to claw back the tax revenue, and having the power itself.
42. Second, the fact that the Commission observed at the hearing that there was a subsequent disconnection between the revenue generated by the three taxes and the amounts paid out under the aid scheme at issue is confirmation of a spurious correlation. If a tax truly forms an integral part of a given aid scheme, that link cannot be broken unless the regime governing it is changed. (21) That has not happened in the matter under consideration.
43. Last, the notion proposed by the Commission at the hearing that the requirement following from case-law that the tax scrutinised must have a direct impact on the amount of the aid ought not to be interpreted strictly, but rather in a manner which guarantees its effectiveness, is unsustainable. Indeed, as stated above at point 27, the general rule is that the State aid provisions are not concerned with taxes. An exception is, however, made as regards taxes which form an integral part of an aid scheme. Hence, the Commission’s interpretation amounts to interpreting that exception extensively and the main rule narrowly.
44. Accordingly, my position on the first reading of the first question referred is that an increase in tax revenue intended to finance an aid scheme does not fall within the scope of the State aid rules in the FEU Treaty if that tax, even though it might be allocated to the financing of the aid scheme, has no direct impact on the amount of aid paid out. It is for the referring court to verify this in the main proceedings.
3. Second reading: is a significant increase in revenue, as compared to the estimates provided with the notification of an aid scheme, generated by a tax which is not an integral part of that scheme to be classified as an alteration to existing aid which is subject to prior notification under the State aid rules?
45. The second reading of the first question referred is premised on the three taxes not forming an integral part of the aid scheme at issue.
46. In that eventuality, the answer to the first question referred, as grasped under the second reading, would follow directly from the position taken on the first reading.
47. Indeed, if a tax does not itself come within the State aid rules, neither can a significant increase in the revenue which it generates, regardless of the estimates submitted.
4. Third reading: is a significant increase in revenue, as compared to the estimates provided with the notification of an aid scheme, generated by a tax which is an integral part of that scheme to be classified as an alteration to existing aid which is subject to prior notification under the State aid rules?
48. The third reading of the first question referred requires further reflection. It essentially concerns the duty of Member States to notify alterations to existing aid measures under Article 108(3) TFEU, which I shall explore below.
(a) The obligation on Member States to notify alterations to existing aid and not to put them into effect until approved
49. The duty incumbent on Member States to notify measures and to refrain from putting them into effect concerns, under Article 108(3) TFEU, ‘plans to grant or alter aid’. The FEU Treaty provides for different procedures according to whether aid is existing or new. While under Article 108(3) TFEU, ‘plans to grant or alter aid’, or new aid, must be notified to the Commission and may not be implemented until that procedure has led to a final decision, under Article 108(1) TFEU existing aid may lawfully be implemented so long as the Commission has made no finding of incompatibility. (22)
50. As it is only new aid that triggers a duty to notify the measure and to refrain from putting it into effect, it is crucial to know whether a measure constitutes existing aid or new aid. (23) In Article 1 of Regulation No 659/1999, the Council has defined ‘new aid’ in negative terms as aid which is not existing aid, and that it includes ‘alterations to existing aid’. No clarification is given as to what such alterations are.
(b) What are ‘alterations to existing aid’?
51. In Article 4(1) of Regulation No 794/2004, the Commission has indicated that it considers an alteration to existing aid to mean ‘any change, save modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market’. That definition appears to draw on earlier case-law. (24) It is also cited in recent case-law of the Court. (25)
52. Prior to the Commission’s adoption of that provision, the Court had itself indicated of what such alterations consist. In the leading case on the issue, Namur-Les assurances du crédit, (26) the Court held that ‘the emergence of new aid or the alteration of existing aid cannot be assessed according to the scale of the aid or, in particular, its amount in financial terms at any moment in the life of the undertaking if the aid is provided under earlier statutory provisions which remain unaltered’. The Court went on to state that ‘whether aid may be classified as new aid or as alteration of existing aid must be determined by reference to the provisions providing for it’. (27)
53. Against that backdrop, whether a given measure constitutes an ‘alteration to existing aid’ depends on the answer to three questions. First, what is the national measure conferring the existing aid? It might be a statute, as in Namur-Les assurances du crédit, a public contract, (28) or otherwise. Second, has that national measure been amended? Third, if so, is that alteration purely formal or administrative?
54. Usually, it is that last question which proves to be most controversial. Case-law does, however, provide guidance: on the one hand, extensions to an approved aid regime, whether temporal (29) or as regards its beneficiaries, (30) invariably seem to affect the substance of the existing aid and constitute an alteration thereto. On the other hand, if the alleged alteration is complex, a more in-depth analysis is required. (31)
55. However, in all cases some form of State intervention to change the existing aid measure appears necessary. (32)
56. That being so, whether a measure amounts to an ‘alteration to existing aid’ obviously cannot be determined without consideration of the legal instrument authorising the existing aid measure. Save where the aid measure in question predates the entry into force of the Treaties or of the accession of the Member State concerned, the starting point when determining whether a given circumstance constitutes an ‘alteration to existing aid’ (and hence a notifiable event) will normally be the Commission decision authorising that aid measure. (33) Indeed, as gatekeeper of State aids, the Commission may, under Article 7(4) of Regulation No 659/1999, make its approval contingent on certain conditions. If aid paid out under an approved aid scheme does not meet the conditions set out in a Commission decision authorising that scheme, the aid paid out must be regarded as new aid. (34)
(c) Position taken
57. Under the third reading of the first question referred, the issue which the Court must resolve is whether a significant increase in tax revenue financing an approved aid scheme amounts to an alteration of that scheme within the meaning of Article 108(3) TFEU, even though the statutory and regulatory basis of that aid scheme is unchanged.
58. The applicants and the Commission take the view that that is the case in the present proceedings. They base that view chiefly on Article 4(2)(a) of Regulation No 794/2004.
59. By contrast, the three intervening governments take the opposite view. The Greek and Italian Governments rely, in particular, on the judgment in Namur-Les assurances.
60. I agree with those governments.
61. As stated earlier, the premiss on which the Court must answer the first question, as grasped under the third reading, is that the tax revenue at issue, including the increase, forms an integral part of the aid scheme at issue. In those circumstances, the Commission is charged with taking those taxes into account when examining the aid scheme at issue following notification of that scheme with a view to taking a position on its compatibility with the internal market. (35)
62. The Commission appears to have done so in this instance.
63. The Commission Decision of 22 March 2006, which initially authorised the aid scheme at issue, essentially noted that the tax at issue and the tax on television services would be turnover-based, whereas the tax on cinema tickets would be based on cinema frequentation and the number of registered admissions. (36) The Commission approved the scheme in view of the commitment given by the French authorities ‘to proceed with the adjustments which might be necessary in order to comply with the evolution of the rules on State aid to film and the audio-visual sector after 30 June 2007’. The approval was conditional on the submission of an annual report on the manner in which the notified measures were to be given effect. (37)
64. After that decision was taken, the French authorities notified to the Commission an amendment to the tax on television services, which both increased the number of taxable subjects and widened the tax basis. The Commission authorised, under the State aid rules, that amendment in its Decision of 10 July 2007 (see point 9 above). In that decision, the highest annual increase in revenue allocated to the aid scheme at issue between 2009 and 2011 generated by that amendment was estimated at EUR 16.5 million. (38) The Commission concluded that ‘the alteration of the existing mechanism, with an increase in budget as a consequence, is not liable to change the Commission’s line of reasoning regarding the compatibility of the aid with the common market, as stated in the Decision of 22 March 2006’. (39)
65. It is therefore clear that the Commission did take the prospective revenue generated by the three taxes into account when assessing the compatibility of the aid scheme at issue with the common market.
66. Subsequently, that revenue increased by 46.3% between 2007 and 2011, owing to the important growth in the revenue of the tax on television services. It increased from EUR 362 million in 2007 to EUR 631 million in 2011, that is to say, by approximately EUR 67.2 million per year or more than 300% annually as compared to the highest estimate. Does that subsequent increase in revenue constitute an alteration to the aid scheme at issue as authorised by the Commission following the Decision of 10 July 2007?
67. I think not.
68. That increase is evidently a change in factual circumstances, but not a structural amendment of the aid scheme at issue, as the taxes funding it have not been modified subsequently. Arguably, even with that increase, the aid scheme at issue complies with the terms set by the Commission in the operative part of its Decision of 10 July 2007. At any rate, alterations to existing aid may not be assessed according to the scale of the aid or, in particular, its amount in financial terms if the aid is provided under earlier statutory provisions which remain unaltered. (40) Accordingly, that increase alone, much as it may be, is not of itself liable to amount to an alteration to existing aid.
69. The Commission counters that Member States ought not to take lightly the estimates they provide it with, nor can that data be robbed of all legal effect solely because they are estimates.
70. I agree with the Commission that the authorities of the Member State must, in accordance with the duty of sincere cooperation enshrined in Article 4(3) TEU, take care that the estimates they submit to the Commission are as correct as possible. A breach of that duty is an actionable event under Article 258 TFEU. However, the Commission cannot base its view on an alleged binding effect of estimates: the Court has held that by definition, estimates contain elements of uncertainty. In fact, incorrect estimates submitted by the Member States cannot even affect the validity of a Commission decision to approve State aid. (41)
71. Rather, as mentioned above, it is the duty of the Commission, when considering an aid scheme financed by a tax or levy which forms an integral part thereof, to take the method of financing into account when examining that scheme. The Commission may then set, in the operative part of its decision itself or in an annex thereto, a condition under Article 7(4) of Regulation No 659/1999 in the form of a ceiling on the funding for the aid scheme at issue, in particular if it has doubts that the quantity of aid disbursed might get out of hand. Breaching such a condition would arguably imply new aid.
72. Yet the Commission did not do that in this instance. As the French Government essentially submits, without being gainsaid, in none of its authorising decisions did the Commission even require the evolution of the revenue raised from the three taxes to be monitored.
73. If, as appears to be the case in the matter under consideration, the Commission bases its decision on data submitted by a Member State which turns out to be incorrect, the Commission has instead certain tools at its disposal to remedy that situation, such as opening the procedure under Article 9 of Regulation No 659/1999 to revoke that decision. Alternatively, if it considers the aid scheme at issue to be no longer compatible with the internal market, it may propose appropriate measures to the French authorities under the procedure for constant review of authorised aid schemes set out in Article 108(1) and (2) TFEU and Chapter V of Regulation No 659/1999. However, the increase in revenue cannot be considered to be classifiable, in and of itself, as an alteration to existing aid.
74. Lastly, I do not consider, as the applicants and the Commission do, that whether a measure amounts to an alteration to existing aid for the purpose of Article 108(3) TFEU and Article 1(c) of Regulation No 659/1999 simply amounts to asking whether there has been an increase in the budget of an approved aid scheme by more than 20% (‘the 20% rule’) under Article 4(2)(a) of Regulation No 794/2004. In order to be classified as an alteration to existing aid, such an ‘increase in the budget’ must necessarily be the consequence of State intervention which the Commission has not authorised. In the matter under consideration, the financing of the aid scheme at issue was approved by the Commission and has not been altered structurally since. Adopting the approach espoused by the applicants and the Commission would rob the concept of ‘State aid’ of meaning if it is so that aid can simply arise, as if by parthenogenesis, without any form of State intervention. When pushed to the extreme, that would mean that if the nominal amount of the aid does not change, yet its real value subsequently increases — such as if the aid is paid out in foreign currency which then undergoes a revaluation — an ‘alteration to existing aid’ could arise. However, the existence of such an alteration and, by the same token, of aid does not depend solely on the current economic context. In any event, the subject matter of that regulation is to set the formal practical requirements connected with State aid notifications and not to change the substantive rules regarding the concept of ‘State aid’.
75. The decisions relied on by the Commission to justify its point of view do not lead me to take a different position. Indeed, the Commission misconstrues those decisions.
76. In Todaro Nunziatina & C, (42) the Court based its finding of new aid both on an increase in the budget allocated to the aid scheme concerned in an amount exceeding 50% in breach of a condition in the authorising decision and on a two-year extension of the period during which the conditions for grant of that aid were applicable. And in Italy v Commission, (43) the Italian Government had notified the Commission of its intention of allocating another EUR 10 million to the budget of an aid scheme previously approved by that institution (corresponding to 100% of the aid scheme). That government therefore positively wished to intervene and provide something more than what had been originally authorised: obviously, that constituted new aid. At any rate, none of those decisions concerned the questions the Court is currently faced with, that is to say, whether a given tax forms an integral part of an aid scheme, or whether a significant increase in tax revenue which finances an existing aid scheme alters that scheme if the scheme itself remains unchanged.
77. Accordingly, and notwithstanding the fact that at this juncture I have trouble in discerning the link between the three taxes and the aid scheme at issue, I propose that the Court should answer the first question referred to the effect that:
– an increase in tax revenue intended to finance an aid scheme does not fall within the scope of the State aid rules in the FEU Treaty if that tax, even though it might be allocated to the financing of the aid scheme, has no direct impact on the amount of aid paid out. It is for the referring court to verify this in the main proceedings;
– on a proper construction of Article 108(3) TFEU and Article 1(c) of Regulation No 659/1999, where the conditions governing an aid scheme remain unchanged, a significant increase in the revenue generated by a tax which serves to finance that scheme of which it is an integral part and which has been approved by the Commission, as compared to the estimates given in the context of the notification of that scheme, does not amount to an alteration of that scheme which triggers the duty of notification and to refrain from putting aid into effect under Article 108(3) TFEU where the Commission has not set a condition, in its authorisation of that scheme, limiting the amount of revenue which that tax may prospectively generate or, in any event, where that revenue does not exceed such a limit.
C. Question 2(a)
78. By its question 2(a), the referring court essentially seeks to know how, in the circumstances described in the first question, Article 4 of Regulation No 794/2004 falls to be applied, particularly in view of the duty incumbent on Member States, under Article 108(3) TFEU, to notify aid schemes before putting them into effect.
79. That question, which follows on from the first question, is deprived of its purpose if the Court were to answer the first question referred in the manner which I propose. Yet if the Court were to disagree with me on the first question, my view would be as follows.
80. Where an approved aid scheme undergoes an alteration in the form of a significant increase in revenue as compared to the estimates originally notified, the only workable scenario is, as essentially argued by the Commission, that the duty of notification under Article 108(3) TFEU would at the latest arise when the Member State concerned became, or ought to have become, aware that the revenue generated by the tax in question was clearly incommensurate with the estimates notified to the Commission.
81. Yet to be sure, allowing the Member State concerned not to proceed to notification until the point at which it became, or ought to have become, aware of the significant increase in revenue as compared to the estimates notified to the Commission sits uneasily with the concept itself of prior notification. I should add that the interpretation of Article 108(3) TFEU proposed by the applicants that the Commission must simply be notified ‘in sufficient time’ is erroneous: Article 108(3) TFEU clearly states that ‘the Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision’. That means that new aid which takes the form either of an original measure or of an alteration to existing aid may not be put into effect until the Commission has issued its approval. A distinction between whether a ‘proposed measure’ is an original measure or an alteration thereto is not provided under Article 1(c) of Regulation No 659/1999 and therefore artificial. (44)
82. Moreover, making the time for notification dependent on the knowledge of the Member State concerned adds a subjective element to the equation, notwithstanding the fact that Article 107(1) TFEU defines the concept of ‘State aid’ objectively in relation to the effects of the State intervention concerned. (45) That is clearly true for the question of the point in time when an increase in tax revenue becomes ‘significant’.
83. In fact, the discussion in the previous points merely confirms the idea that, when it comes to significant increases in tax revenue which finances an authorised aid scheme as opposed to the estimates notified, a duty of prior notification does not make sense. At the risk of being circular, that is why I would maintain that the duty of prior notification under Article 108(3) TFEU rather lends support to the idea that such an increase does not constitute a notifiable event.
D. Question 2(b) and (c)
84. By its question 2(b) and (c), the referring court seeks to know whether the 20% rule under Article 4(2)(a) of Regulation No 794/2004 is to be calculated on the basis of the funds generally allocated to the aid scheme or rather of the expenditure actually granted to the beneficiaries, to the exclusion of sums placed in the reserve or those taken for itself by the State (question 2(b)). If that threshold is to be calculated on the basis of the expenditure dedicated to the aid scheme, the referring court asks (question 2(c)) whether the assessment is to be made by comparing the maximum amount of aid authorised by the Commission in its decision with the total budget subsequently allocated to all the various approved aid measures, or rather by comparing the notified ceiling for each type of aid identified in the Commission decision with the budget heading of the allocating body.
85. Those questions are rather technical in nature. In the same fashion as regards question 2(a), an answer to question 2(b) and (c) also appears necessary only insofar the three taxes do form an integral part of the aid scheme at issue, and a significant increase in tax revenue does constitute an alteration of the approved aid regime which, consequently, gives rise to a duty for the Member State to notify that alteration to the Commission. If the Court were to consider that to be the case, then I would briefly offer the following views.
86. As for the issue raised under question 2(b), even though it concerns, nominally speaking, the interpretation of the 20% rule under Article 4(2)(a) of Regulation No 794/2004, it is once more appropriate to consider the third sentence of Article 108(3) TFEU. That provision requires the Member State concerned not to put its proposed measures into effect until the formal investigation procedure has resulted in a final decision. Given the premiss on which the Court must base its answer, namely, that the three taxes form an integral part of the aid scheme at issue, that prohibition of putting the aid measure into effect must extend not only to the disbursements actually made to the beneficiaries under the scheme, but also to the upstream event of collecting the revenue which finances the scheme. Therefore, to the extent that an approved aid scheme is financed by a tax forming an integral part of that scheme, the notifiable event is not limited to the actual expenditure under that scheme, but extends to the raising of funds to finance that scheme.
87. Indeed, if, in normal circumstances, undertakings may not rely on the State aid rules to avoid paying taxes, the setting which is relevant here is that in which the three taxes, as an integral part of the aid scheme at issue, are the direct basis for the funding of that scheme. In that light, the distortion of competition which the State aid rules seek to prevent occurs not merely at the time of granting the aid to the beneficiaries under the aid scheme at issue, but already at the time of levying those taxes from the undertakings that are liable to pay them if those taxes do not remain in the hands of the Exchequer. (46) The fact that the beneficiaries might not be in competition with the applicants is of no consequence in that regard. (47) The only fact to be taken into consideration is that the taxpayer is subject to a tax which is an integral part of a measure implemented in breach of Article 108(3) TFEU. (48)
88. Accordingly, the sums which the CNC has placed in the reserve or that the French State has taken for itself must be included for the purpose of calculating whether the threshold under Article 4(2)(a) of Regulation No 794/2004 is met.
89. Lastly, as for the issue raised under question 2(c), that question is premised on the idea that the concept of ‘budget’ in Article 4(2)(a) of Regulation No 794/2004 refers to the actual expenditure and not the revenue raised. Should the Court hold that to be the case, the referring court then asks if, when considering whether the threshold of 20% is reached, the overall aid ceiling approved by the Commission is to be compared with the overall budget allocated to the aid in its entirety by the allocating body, or rather whether the ceilings for each aid sub-category listed in the Commission decision are to be compared with the budget heading of that body.
90. My answer would be ‘both’.
91. If the Commission authorises an aid scheme on the basis of aid ceilings proposed by a Member State, those proposed aid ceilings form part of the notification in the light of which the authorisation must be understood. (49) If the notified ceilings, approved by the Commission, include both a (higher) horizontal aid ceiling and several (lower) vertical aid ceilings, then the limits expressed by each of those ceilings must normally be observed by the Member State concerned. The Commission may, of course, as a condition for approval, require renotification by the Member State concerned if a ceiling is exceeded.
92. In my view, the same applies in relation to the 20% rule.
93. Where specific aid ceilings have been set in a decision authorising an aid scheme, the question whether there has been a notifiable increase in the budget cannot depend only on the overall amount of aid approved against the overall budget of the body charged with allocating the aid. Otherwise Member States might be tempted to evade the specific aid ceilings which they have themselves notified.
94. The fact that exceeding the specific (vertical) ceilings would normally speaking involve lower amounts of aid, and thus a reduced aid intensity, than overstepping the overall (horizontal) threshold would, relate to the assessment of the compatibility of the amendment to the aid scheme and not to the existence of (an amendment to existing) aid.
95. Accordingly, should the Court decide to reply to it, I would propose answering question 2(c) to the effect that, on a proper construction of Article 4(2)(a) of Regulation No 794/2004, when considering whether the threshold of 20% set out in that provision is reached, the overall aid ceiling set in a Commission decision approving an aid scheme is to be compared with the overall budget allocated to the aid in its entirety by the allocating body, and the ceilings for each aid sub-category listed in that decision are to be compared with the budget heading of that body.
E. The request for suspension of the temporal effects of the judgment
96. The French Government has requested the Court to suspend the temporal effects of the judgment if the Court were to hold that an increase of 20% of the revenue of the three taxes allocated to the aid scheme at issue, as compared to the estimates given in the Commission Decision of 10 July 2007, is a substantial alteration of that scheme which should have been notified to the Commission.
97. If the Court were to follow the view I propose, then this issue becomes moot. Nonetheless, I shall briefly state my views.
98. It is only quite exceptionally that the Court will restrict the temporal effects of its rulings. Two essential criteria must be fulfilled before such a limitation might be envisaged, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties. (50)
99. In that regard, the French Government argues, first, that the French authorities failed to notify the alteration to the aid scheme at issue owing to the objective and extensive uncertainty regarding the extent of their duty to notify, to which the Commission largely contributed. Second, the French Government refers to the high number of legal relationships established in good faith which have exhausted their effects in the past between the French authorities and, on the one hand, the taxpayers concerned, which form a very large number of traders of disparate nature and, on the other hand, the beneficiaries under the aid scheme at issue, in relation to which aid has been paid out between 2006 and 2011 in the amount of EUR 2 101 267 000.
100. In Régie Networks, (51) which also concerned a French aid scheme to support local radio stations, the Court limited the effects of the invalidity of the Commission decision at issue in that case. However, the Court’s assessment rested in part on considerations relating to the Commission’s exclusive power to take a decision authorising State aid and to the Court’s jurisdiction to invalidate such decisions.
101. I do concur with the French Government that the main proceedings testify to significant legal uncertainty as to the proper interpretation of the concept of ‘alterations to existing aid’, and that nothing suggests that the French authorities or the beneficiaries under the aid scheme acted in bad faith, given the fact that the Commission has not called that increase into question before now. Still, I do not consider that government’s request to be meritorious.
102. Indeed, as regards the risk of serious difficulties, in the first place, it is settled case-law that the financial consequences which might result for a Member State from a preliminary ruling do not, in themselves, justify limiting the temporal effect of such a ruling. (52) In any event, the French Government has not explained how repayment of the aid at issue would have devastating consequences.
103. In the second place, in Schulz and Egbringhoff, (53) the Court did not consider that calling into question legal relations which had exhausted their effects in the past would retroactively cast into confusion the electricity and gas supply sector in Germany and, accordingly, that a risk of serious difficulties had been established. A fortiori therefore, such a risk is not apparent in this instance either.
104. In those circumstances, I would recommend refusing the request to limit the effects in time of the Court’s decision.
IV. Conclusion
105. In light of the above considerations, I propose that the Court should answer the questions referred by the Conseil d’État (Council of State, France) to the effect that:
– an increase in tax revenue intended to finance an aid scheme does not fall within the scope of the State aid rules in the FEU Treaty if that tax, even though it might be allocated to the financing of the aid scheme, has no direct impact on the amount of aid paid out. It is for the referring court to verify this in the main proceedings;
– on a proper construction of Article 108(3) TFEU and Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU], where the conditions governing an aid scheme remain unchanged, a significant increase in the revenue generated by a tax which serves to finance that scheme of which it is an integral part and which has been approved by the Commission, as compared to the estimates given in the context of the notification of that scheme, does not amount to an alteration of that scheme which triggers the duty of notification and to refrain from putting aid into effect under Article 108(3) TFEU where the Commission has not set a condition, in its authorisation of that scheme, limiting the amount of revenue which that tax may prospectively generate or, in any event, where that revenue does not exceed such a limit.