C-91/83

JUDGMENT OF 9. 10. 1984 — JOINED CASES 91 AND 127/83

interested parties; such an obligation (3) of the Treaty applies to the falls upon the Commission alone proposed aid programme in its when it initiates the procedure pro- entirety and in the final version vided for in Article 93 (2). adopted by the national authorities. If the plan initially notified has in the 3. The obligation provided for in the meantime undergone alterations of first sentence of Article 93 (3) to which the Commission has not been inform the Commission of plans to informed, the prohibition applies to grant or alter aid does not apply the plan as altered, unless the solely to the initial plan, but also alteration in question is in actual fact covers subsequent alterations to that a separate aid measure which should plan; such information may be be assessed separately and which is supplied to the Commission in the therefore not such as to influence the course of the consultations which take assessment which the Commission has place following the initial notification. already made of the initial plan; in 4. The prohibition on the putting into that case, the prohibition applies only effect of aid measures which is laid to the aid measure introduced by the down in the last sentence of Article 93 alteration.

In J o i n e d Cases 91 a n d 1 2 7 / 8 3

R E F E R E N C E t o t h e C o u r t u n d e r Article 177 of t h e E E C T r e a t y by t h e Gerechtshof [Regional C o u r t of A p p e a l ] , Amsterdam, for a preliminary ruling in the cases pending before t h a t c o u r t between

INSPECTEUR DER VENNOOTSCHAPSBELASTING, U T R E C H T (Case 1 2 7 / 8 3 ) ,

on t h e interpretation of Articles 92 a n d 93 of t h e E E C T r e a t y , ,„„.,„.„„ HEINEKEN BROUWERIJEN / INSPECTEURS DER VENNOOTSCHAPSBELASTING, AMSTERDAM AND UTRECHT

THE COURT (Fifth Chamber)

composed of: O. Due, President of Chamber, C. Kakouris, U. Everling, Y. Galmot and R. Joliét, Judges,

Advocate General: G. F. Mancini Registrar: D. Louterman, Administrator

gives the following

according to the region in which the basic and selective allowances reducing building or plant is erected or according the amount of tax due in the year in to their nature or intended purpose. which the investment is undertaken. In principle the basic allowances were to apply generally to all undertakings in the Netherlands irrespective of the nature or Before its entry into force on 1 October place of their business. If the investment 1975 the Wet Selectieve Investerings- fulfilled certain conditions, the investor regeling was amended by a Law of 28 was also to be entitled to one or more May 1975 (Staatsblad 1975, p. 290) selective allowances. One of them was which provides inter alia that it may be the "general regional allowance" to be decided by general administrative granted in respect of investments outside measure that the levy is not to apply to the Randstad. buildings or plant erected in a specified region. Pursuant to that provision a general administrative measure was adopted by order of 17 June 1975 By letter dated 28 February 1977 the (Staatsblad 1975, p. 325). Consequently, Netherlands Government notified the when the Wet Selectieve Investerings- Commission of the bill pursuant to regeling came into force its ambit was Article 93 (3) of the EEC Treaty. very limited and pursuant to an order of 6 September 1976 (Staatsblad 1976, p. 478) the levy was suspended with retroactive effect from 9 June 1976. That The Commission replied by letter dated suspension was subsequently revoked, 26 May 1977 that it had initiated the however, as from 29 June 1978. procedure provided for in Article 93 (2) of the Treaty against the bill, in view, in particular, of the general .regional allowance. The Commission emphasized 2. The Wet Investeringsrekening in this regard that it had no objection against such legislation provided that the aid was "granted in the regions and On 16 February 1977 a bill was tabled within the maximum limits for which the before the Netherlands Parliament which Commission has (in 1974) allowed became the Wet Investeringsrekening exception". However, as it did not know [Law setting up an investment fund] the geographical area in which the (Staatsblad 1978, p. 368). allowance was to apply, the Commission was unable to verify whether the aid might be covered by one of the exceptions in Article 92 (2) of the The preamble thereto stated that in order Treaty. to increase employment "it would be desirable to stimulate investment and in so doing to take account of the social and economic development of certain Following discussions between the regions, town-and-country planning . . . Netherlands Government and the Com- a healthy environment and an economi- mission the former decided not to intro- cal use of energy and raw materials." duce the general regional allowance and incorporated it in the basic allowance, which, being a general measure, was not, The bill made provision for an in- according to the Commission, caught by vestment allowance scheme consisting of Article 92 (1) of the Treaty. The bill was

1. In 1978 and 1979 the plaintiff in the The Wet Investeringsrekening was main proceedings, Heineken Brouwe- passed on 29 June 1978. It came into rijen BV, Zouterwoude, made two force on 19 July 1978 with retroactive investments in the Randstad. Both.were effect from 24 May 1978. It makes eligible for the aid provided for by the provision inter alia for the introduction Wet Investeringsrekening. However, for of an investment allowance which is the one of those investments the investment same throughout the Netherlands and allowance was reduced pursuant to the is higher than the allowance originally transitional rule laid down in Article 36 envisaged; for new buildings it is 2 3 % . of the Wet Investeringsrekening whilst the levy provided for by the Wet Selec- tieve Investeringsregeling was charged on the other investment. During the bill's passage through the Netherlands Parliament it was an- nounced that the levy provided for by the Wet Selectieve Investeringsregeling, Heineken subsequently brought two which had been suspended from 9 June actions in the Gerechtshof [Regional 1976, was to be brought back into force Court of Appeal], Amsterdam, against and as a result Articles 5 (2) and 10 (2) the decision of the Inspector of Cor- of the Wet Selectieve Investerings- poration Taxes, Amsterdam, rejecting its regeling were amended by the Wet application for the full allowance, Investeringsrekening. In addition, the, payable under the Wet Investerings- following provision was introduced by rekening, for its first investment and Article 36 of the Wet Investerings- against the decision of the Inspector of rekening instead of the transitional Corporation Taxes, Utrecht, confirming provision originally envisaged : that the levy provided for by the Wet Selectieve Investeringsregeling would be charged on the last investment.

Wetsontwerp Investeringsrekening to plainly made known to each which the Commission had objected and interested party? against which it had commenced the procedure under Article 93 (2) of the Treaty; in particular, the Wet Selectieve 3. Must such notification also take place Investeringsregeling, the amendments in respect of amendments made to the made to Article 5 (2) and 10 (2) of that bill introducing the aid during its Law, the differential rate contained in passage through parliament? Article 36 of the Wet Investerings- rekening and the actual effect of that Law together with that of the Wet Selectieve Investeringsregeling had to be 4. If an amendment to a measure considered, individually or jointly, as granting aid which is about to be aid, with the meaning of Article 92 of introduced is not notified to the the EEC Treaty, introduced without Commission, whereas the draft prior notification under Article 93 (3) of measure to which the amendment is the Treaty. made has been notified to the Commission, must the prohibition in the last sentence of Article 93 (3) of the Treaty against the implementation 3. The Tax Inspectors rejected those of such measures be considered to contentions. apply and, if so, does it cover the whole of the measure eventually adopted or only the part of the measure adopted in that amendment? 4. The Gerechtshof stayed the pro- ceedings and referred the following questions to the Court for a preliminary 5. In accordance with Article 20 of the ruling: Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted to the Court by the plaintiff 1. Should the Wet Selectieve Investe- in the main proceedings, Heineken ringsregeling, the amendments made Brouwerijen BV, represented by F. to the Law in view of its combined Salomonsen,- of- the Amsterdam Bar, and effect with the Wet Investerings- A. E. R. Crollius, tax consultant, Rijwijk, rekening, the differential rate adopted by the Netherlands Government, re- in Article 36 of the Wet Investerings- presented by I. Verkade, Secretary rekening or the actual combined General at the Ministry of Foreign effect of those Laws be regarded, Affairs, by the Italian Government, individually or jointly, as aid in the represented by P. G. Ferri, Avvocato sense indicated in the grounds of this dello Stato, acting as Agent, and by the judgment? Commission, represented by B. van der Esch, acting as Agent.

(i) Preliminary observations 1. In Heineken's view, the reintro- duction in June 1978 of the levies The Italian Government points out that chargeable under the Wet Selectieve the issue raised by the Gerechtshof raises Investeringsregeling combined with the in the first place a preliminary question provisions of the Wet Investerings- whether an interpretative ruling under rekening constitute aid within the Article 177 may be delivered on Articles meaning of Article 92 of the Treaty. In 92 and 93 of the Treaty. On this point addition, the application of Article 36 of it draws the Court's attention to its the Wet Investeringsrekening is in itself previous decisions, in particular its aid within the meaning of Article 92. judgment of 22 March 1977 in Case 78/76 Steinike & Weinlig v Federal Republic of Germany [1977] ECR 595 1.1. Heineken points out that, instead which, whilst demonstrating that the of the scheme originally envisaged by the Court does not entirely exclude the Wet Investeringsrekening, consisting of a possibility that a national court may basic allowance for the whole country obtain an interpretative ruling on the and a general regional allowance for Treaty rules on aid, makes clear the investments outside the Randstad, the limits of any normative force of Articles basic allowance has been increaseed to a 92 and 93 for the purposes of resolving a rate equal to the total of the original dispute governed by domestic law. As basic allowance plus the general regional long as the issue is whether or not aid is allowance. In order to achieve the compatible with the Common Market, regional differentiation sought, the levy the Community provision has no im- system provided for by the Wet portance in a dispute falling within the Selectieve Investeringsregeling was re- jurisdiction of a national court since the introduced at the same time whilst the relevant judgment cannot be made by an rates of the basic allowances and levies institution other than that indicated in have been fixed in such a way that the Article 93, that is to say otherwise than result is the same as that of the scheme in the course of the special procedure rejected by the Commission. In this laid down by that article and within the regard Heineken refers in particular to

It is therefore clear that the Netherlands Government sought by means of the That was precisely why Article 36, combined effect of the Wet Selectieve which, in the case of buildings in respect Investeringsregeling and the Wet In- of which an application for planning vesteringsrekening to achieve aims that permission was submitted before the the Commission judged unacceptable reintroduction of the levy chargeable when presented in the form of a general under the Wet Selectieve Investerings- regional allowance. The intention of the regeling (that is to say before 24 June Government is of little importance, 1978), reduced the allowance granted however. under the Wet Investeringsrekening by the amount of the levy chargeable under the Wet Selectieve Investeringsregeling, By way of illustration Heineken i.e. from 2 3 % to 1 1 % , was inserted in mentions the amendments made to the Wet Investeringsrekening. Articles 5 (2) and 10 (2) of the Wet Selectieve Investeringsregeling by virtue of which the levy chargeable under that Moreover, during the parliamentary Law may be reduced for certain debates, the objection was raised that institutions or savings banks which, not Article 36 applied throughout the being subject to corporation tax, cannot country and therefore to regions outside take advantage of investment allowances the Randstad. To meet that objection the available under the Wet Investerings- Netherlands Government decided to rekening. restrict the application of Article 36 to the Randstad (and also that the article would not apply to buildings exempt 1.2. On the question of Article 36 of from the levy chargeable under the Wet the Wet Investeringsrekening, Heineken Selectieve Investeringsregeling). observes in particular that by virtue of Article 3 (a) (2) of the Wet Selectieve Investeringsregeling no levy is payable As a result of Article 36 specific on buildings as a result of the reintro- distortion occurred as regards invest- duction of the levy chargeable under that ments resulting from applications for Law if the application for planning planning permission submitted before permission was lodged before the date of 29 June 1978: within the Randstad the the reintroduction of the levy. During allowance granted under the Wet the parliamentary debates on the two Investeringsrekening was 1 1 % whereas pieces of legislation the situation was elsewhere it was 2 3 % .

It defines the Wet Investeringsrekening as an instrument for stimulating invest- 2.1. Finally, on the question of Article ment consisting of a combination of a 36 of the Wet Investeringsrekening, the general basic allowance and special supp- Netherlands Government points out that lementary allowances. The basic this article makes provision for a allowance cannot be regarded as aid reduction of the basic allowance within the meaning of Articles 92 and 93 available under the Law only in a few of the Treaty because for that to be the very specific cases and applies to case the State must favour certain under- investments made between 23 May and takings or the production of certain 28 June 1978. It is therefore a tran- goods. The basic allowance is not sitional provision designed to prevent selective since it benefits all undertakings any improper use of the Wet Investerings- and the production of all goods. On the rekening and since it is meant to reduce other hand the special supplementary a general basic allowance it cannot by its allowances are indeed aid within the nature be treated as a measure that is meaning of the Treaty but in so far as contrary to Article 92 of the Treaty. they were maintained the Commission considered them compatible with the common market. 3. In its written observations the Italian Government does not express any opinion on the substance of the first The combined effect of the Wet question. In its view that question cannot Selectieve Investeringsregeling and the be related to the interpretation of Article Wet Investeringsrekening cannot be 92 of the Treaty. To classify State regarded as aid within the meaning of intervention as aid under that provision Article 92 of the Treaty either. It cannot has no practical sense if this is done be denied that in the course of time the separately from the assessment of its attempt was made to coordinate the two compatibility with the common market, laws better. Nevertheless, they are two which is a matter falling within the distinct Laws each with their own exclusive jurisdiction of the Commission. distinct purpose; the Wet Investerings- rekening is meant to stimulate investment whilst the aim of the Wet Selectieve On the other hand, if the question Investeringsregeling is to influence relates to the interpretation of Article 93 investment from the specific viewpoint of the Treaty, the classification as aid of the concentration and congestion helps to establish whether in the case existing in a specific . area . and is - thus submitted to the Court the conditions

necessitating or making possible the kinds of development could not be action and procedures provided for by treated differently unless they were that provision were or are fulfilled. introduced in order to circumvent Nevertheless, from that procedural Articles 92 and 93 of the Treaty. There viewpoint the question appears to be is no question of that in the present case. superseded by the answers given to the subsequent questions which deprive it of any relevance in a dispute governed by domestic law concerning the application of provisions of domestic law in respect of which there is no final decision within the meaning of Article 93 (3) of the Furthermore, the nature of a town-and- Treaty or any procedure pending. country planning measure which, con- sidered on its own, does not have the character of aid is not altered by the concurrent existence or introduction of other measures having that character. The two instruments are politically, economically and legally distinct. The fact that levies chargeable under the Wet 4. In the Commission's view, it is going Selectieve Investeringsregeling exist side too far to regard a levy designed to curb by side with allowances available under development in certain areas as indirect the Wet Investeringsrekening does not aid to activities in other areas. The fetter the freedom of undertakings reason is clear: an undertaking which established in the Randstad to decide decides to remove its business entirely or whether they will move to another partly from the Randstad owing to the Member State or take advantage of existence of such a levy has the entire the scheme introduced by the Wet common market to choose from. It is Investeringsrekening. That freedom is therefore quite impossible to predict not limited by the fact that the reintro- whether the undertaking will establish or duction of the levies provided for by the extend its business elsewhere in the Wet Selectieve Investeringsregeling is Netherlands. That is why the Com- politically related to an amendment of mission has never regarded the Wet the provisions of the other Law. Selectieve Investeringsregeling as aid. At the time._in. question it moreover stated in an unofficial administrative communi- cation that it considered Articles 92 and 93 inapplicable.

2. The Netherlands Government points out that the purpose of notifying aid Finally, Article 93 (2), which requires the to the Commission in accordance with Commission when commencing the Article 93 of the Treaty is to enable the procedure to investigate whether the aid Commission to supervise compliance by is compatible with the common market the Member States with the Treaty to give the parties concerned the op- provisions on aid. It cannot therefore be portunity to submit their comments, inferred from Article 93 (3) of the Treaty confirms the foregoing points. or from the relevant previous decisions of the Court that a Member State has an obligation to give immediate notice in some form or another to every interested It is therefore clear that, even if the party of plans to introduce or amend aid phrase "parties concerned" is widely notified to the Commission. defined to include parties other than the Member States, that reading has legal significance only in the procedure commenced by the Commission in so for as it requires the Commission and not 3. The Italian Government considers the State which gave the initial that a negative reply to the second notification to inform all the parties question may be based quite simply on concerned. Article 93 (3) which does not lay down any duty to inform the public in the sense implied by the question. 4. The Commission considers that its answer to the first question renders the other questions of the Gerechtshof That conclusion is moreover supported purposeless. With that reservation it by weightier considerations. observes that Article 93 (3) of the Treaty does not require all the parties concerned to be informed about plans to introduce or alter aid. In particular, the giving of First, notification to the Commission is notice to the parties concerned to submit sufficient by itself to achieve the aim of their comments, as provided for in the the provision which is to bring about the first subparagraph of Article 93 (2), intervention of the sole authority which concerns the cases in which the may decide, subject to later review by Commission considers that it must com-

menee the procedure provided for by 3. The Italian Government considers that article. that an affirmative reply to the third question, to the effect that notification by the Member State must also cover amendments made to the bill during its passage through parliament, seems to be based on a too formalistic view of the (iv) The third question relations which ought to exist between the Member State and the Commission. Those relations ought to consist in genuine collaboration on the part of the Member State so as to guarantee through a useful dialogue the efficient 1. Heineken observers that even if performance of the duties regarding the the levy scheme provided for by the implementation of Article 92 allocated to Wet Selectieve Investeringsregeling was the Community institution. That result notified to the Commission during the can actually be achieved without undue passage of that Law through parliament strictness or burdensome procedures in 1973 and 1974, fresh notification which appear alien to the spirt and ought to have been given in 1978 of the rationale of Article 93 of the Treaty. reintroduction of the levy and the adap- tation of the Wet Selectieve Investerings- regeling to the Wet Investeringsrekening. However, in the correspondence between In this regard it must also be borne in the Commission and the Netherlands mind that the categories of aid envisaged Government no mention is made of a in Article 92 are often State aid which reintroduction of the levy chargeable must be implemented quickly owing to under the Wet Selectieve Investerings- some unforessen or temporary need. regeling in conjunction with the amended draft of the Wet Investerings- rekening. Furthermore, the Commission terminated the procedure commenced under Article 93 (3) of the Treaty in It would therefore be wrong in the April 1978 whereas Article 36 of the Wet present case to treat the amendment Investeringsrekening was not discussed of the bill already notified to the by the government and the Netherlands Commission and made during the final Parliament until May and June 1978. reading of the bill itself in the same way Heineken concludes from this that the as an amendment of aid that has already aid was not duly notified to the Com- been introduced and implemented. In mission. providing for the Commission to exercise preventive control over planned aid rather than instituted aid Article 93 (3) implicitly allows the original bill to be altered in accordance with a Mem- ber State's constitutional machinery, 2. The Netherlands Government con- although such alterations may not escape siders that any notification by a Member scrutiny by the Commission. The fact is, State to the Commission of plans to however, that such alterations are made introduce or alter aid must also cover as part of a Member State's initiative substantive amendments of the bill to of which the Commission has been introduce aid if these are made during informed by the initial notification and the bill's passage through parliament. the Commission is thus in a position to

3. In the Commission's view, it is clear (v) The fourth question from the first sentence of Article 93 (3) that the last sentence of paragraph (3) is 1. The Netherlands Government con- applicable to all planned measures to siders that if an amendment to a measure introduce or amend aid. granting aid which is about to be introduced is not notified to the Commission, whereas the draft measure to which the amendment is made has I l l — Questions put to the C o m - been notified to the Commission, the mission prohibition in the last sentence of Ar- ticle 93 (3) of the Treaty against the implementation of such measures must be considered to apply in principle to the The Court requested the Commission part of the measure adopted in that to provide in writing details of the amendment. This does not preclude the discussions which it had with the Commission from regretting the entire Netherlands Government and to explain measure in question if it finds that the the position it adopted at that time with amendment alters the measure in such a regard to: way that the aid can no longer be granted. (a) the original draft of the Wet Selectieve Investeringsregeling : 2. The Italian Government points out that Article 93 (3) of the Treaty clearly (b) the possibility of bringing that Law distinguishes the preliminary stage, back into force, at the. same time as consisting of an informal exchange of the entry into force of the Wet views between the Commission and Investeringsrekening ; the Member State, from the possible commencement thereafter of the formal procedure which is contentious in nature (c) the transitional problems which and ends in the adoption of a decision. It Article 36 of the Wet Investerings- is to that procedure to which the last rekening was meant to resolve. sentence of Article 93 (3) clearly and. unequivocally refers when providing that the proposed measure is to be suspended The Commission replied to the Court's until the Commission has reached a final questions by letter dated 29 February 1984. In this regard it stated in particular decision. It follows that a duty not to that: implement aid cannot arise if the aforesaid procedure, which is only contingent and not necessarily the result (a) The draft of the Wet Selectieve of the notification of proposed aid, has Investeringsregeling itself was not

Decision

1 By two judgments of 13 April 1983, which were received at the Court on 24 May and 7 July 1983, the Gerechtshof [Regional Court of Appeal], Amsterdam, referred to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty four questions concerning the interpretation of Articles 92 and 93 of the Treaty.

2 The questions were raised in the course of two disputes between Heineken Brouwerijen BV, the plaintiff in the main proceedings, and the Inspecteurs der Vennootschapsbelasting [Inspectors of Corporation Taxes] of Amsterdam and of Utrecht, concerning tax payable by Heineken for the period 1977 to 1979.

3 In 1972, in order to alleviate the problems arising from the congestion of urban regions situated in the western part of the Netherlands, known as the "Randstad-Nederland", the Netherlands Government submitted to Par- liament a bill entitled the "Wet Selectieve Investeringsregeling" [Law enacting a selective investment scheme], which introduced a levy on most

HEINEKEN BROUWERIJEN / INSPECTEURS DER VENNOOTSCHAPSBELASTING, AMSTERDAM AND UTRECHT

new investments in those regions. The Wet Selectieve Investeringsregeling was adopted in 1974, but by the time it was brought into force its scope had been severely restricted, and it was suspended in 1976.

5 By a letter of 18 February 1977 the Netherlands Government notified to the Commission the draft of the Wet Investeringsrekening pursuant to Article 93 (3) of the Treaty. By a letter of 26 May 1977 the Commission replied that it had initiated the procedure provided for in Article 93 (2) of the Treaty against that draft law, in respect of the system of selective allowances and, in particular, the general regional allowance, on the ground that it did not specify the region to which it applied. Following discussions between the Commission and the Netherlands Government, the government decided not to introduce the general regional allowance and incorporated it in the basic allowance. It informed the Commission of that decision by a letter of 16 March 1978 and, on the following 21 April, the Commission notified the Netherlands Government that the procedure initiated with regard to the Wet Investeringsrekening had been terminated.

6 In the course of the Wet Investeringsrekening's passage through parliament, it was decided to bring back into force the levy provided for by the Wet Selectieve Investeringsregeling. To that end, certain amendments to the Wet Selectieve Investeringsregeling intended to coordinate the two sets of rules were inserted in the Wet Investeringsrekening. In addition it was provided in Article 36 of the Wet Investeringsrekening that, for a transitional period pending the reintroduction of the levy imposed under the Wet Selectieve Investeringsregeling, investment allowances granted in the form of tax relief were to be reduced in respect of investments made in the Randstad. The Wet Investeringsrekening was adopted on 29 June 1978 and came into force with retroactive effect from 24 May 1978. The suspension of the Wet Selectieve Investeringsregeling was revoked as from 29 June 1978.

1. Should the Wet Selectieve Investeringsregeling, the amendments made to the Law in view of its combined effect with the Wet Investeringsrekening, the differential rate adopted in Article 36 of the Wet Investeringsrekening or the actual combined effect of those Laws be regarded, individually or jointly, as aid in the sense indicated in the grounds of this judgment?

2. Must Article 93 (3) of the Treaty be interpreted as meaning that notification to the Commission by a Member State of plans to grant or alter aid must be immediately and plainly made known to each interested party?

HEINEKEN D K O U W E R I J E N / INSPECTEURS DER VENNOOTSCHAPSBELASTING, AMSTERDAM AND UTRECHT

3. Must such notification also take place in respect of amendments made to the bill introducing the aid during its passage through parliament?

4. If an amendment to a measure granting aid which is about to be introduced is not notified to the Commission, whereas the draft measure to which the amendment is made has been notified to the Commission, must the prohibition in the last sentence of Article 93 (3) of the Treaty against the implementation of such measures be considered to apply and, if so, does it cover the whole of the measure eventually adopted or only the part of the measure adopted in that amendment?

io In proceedings under Article 177 of the Treaty, the Court may not rule on the interpretation of national laws and regulations or on the conformity of such measures with Community law; it may only provide the national court wiht the criteria for interpretation based on Community law which will enable that court to solve the legal problem with which it is faced. In this instance, it is therefore necessary to provide the Gerechtshof with the criteria for interpretation which will enable it to decide whether the plaintiff in the main proceedings is justified in relying upon the Netherlands Government's failure to comply with the provisions of the Treaty on State aid in order to prevent the tax authorities from applying the laws in question to it.

H That text makes no reference to an obligation of the type mentioned in the second question and that is consistent with the objectives of the aforesaid provisions and the context within which they fall. The sole purpose of the first sentence of Article 93 (3) is to provide the Commission with the oppor- tunity to review, in sufficient time and in the general interest of the Communities, any plan to grant or alter aid. At the same time, the interests of any individuals concerned are protected by Article 93 (2), which requires the Commission, when it initiates the procedure provided for in that paragraph, to give notice to the interested parties to submit their comments.

is In reply to the second question it must therefore be stated that Article 93 (3) of the Treaty does not require that the notification to the Commission by a Member State of plans to grant or alter aid should be immediately made known to all the interested parties; such an obligation falls upon the Commission alone when it initiates the procedure provided for in Article 93 (2).

The third question

i6 In this question the Gerechtshof asks whether the obligation to inform the Commission of plans to grant aid which is imposed on Member States by the

HEINEKEN BROUWERIJEN / INSPECTEURS DER VENNOOTSCHAPSBELASTING, AMSTERDAM AND UTRECHT

first sentence of Article 93 (3) also applies to alterations made to such plans in the course of parliamentary debate.

20 As the Court has already emphasized, inter alia in its order of 20 September 1983 (Case 171/83 R Commission v France [1983] ECR 2621), the final sentence of Article 93 (3) is the means of safeguarding the machinery for review laid down by that article, which, in turn, is essential for ensuring the

JUDGMENT OF 9. 10. 1984 — JOINED CASES 91 AND 127/83

proper functioning of the common market. The prohibition laid down by that article is intended to ensure that the aid measures do not come into effect before the Commission has had a reasonable period in which to consider the plan in detail and, if necessary, to initiate the procedure provided for in Article 93 (2).

21 It follows that the prohibition applies to the aid programme in its entirety and in the final version adopted by the national authorities. If the initial plan has been altered, the last sentence of Article 93 (3) therefore applies to the plan as altered. Where the plan has been notified and the Commission has not raised any objections to it, but the Member State concerned has made alterations of which the Commission has not been informed, the provision precludes the putting into effect of the aid programme in its entirety. The position may be different only where the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial plan.

22 In reply to the fourth question it must therefore be stated that the prohibition on the putting into effect of aid measures, which is laid down in the last sentence of Article 93 (3), applies to the proposed aid programme in its entirety and in the final version adopted by the national authorities. If the plan initially notified has in the meantime undergone alterations of which the Commission has not been informed, the prohibition applies to the plan as altered, unless the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial plan; in that case, the prohibition applies only to the aid measure introduced by the alteration.

in answer to the questions referred to it by the Gerechtshof, Amsterdam, by judgments of 13 April 1983, hereby rules:

1. Article 93 (3) of the Treaty does not require that the notification to the Commission by a Member State of plans to grant or alter aid should be immediately made known to all the interested parties; such an obligation falls upon the Commission alone when it initiates the procedure provided for in Article 93 (2).

2. The obligation provided for in the first sentence of Article 93 (3) to inform the Commission of plans to grant or alter aid does not apply solely to the initial plan, but also covers subsequent alterations to that plan; such information may be supplied to the Commission in the course of the consultations which take place following the initial notification.

3. The prohibition on the putting into effect of aid measures, which is laid down in the last sentence of Article 93 (3), applies to the proposed aid programme in its entirety and in the final version adopted by the national authorities. If the plan initially notified has in the meantime undergone alterations of which the Commission has not been informed, the prohibition applies to the plan as altered, unless the alteration in question is in actual fact a separate aid measure which should be assessed separately and which is therefore not such as

OPINION OF MR MANCINI — JOINED CASES 91 AND 127/83

to influence the assessment which the Commission has already made of the initial plan; in that case, the prohibition applies only to the aid measure introduced by the alteration.

Mr President, The facts of Case 91/83 are as follows. Members'of the Court, On 30 January 1981 the Inspector for Corporation Taxes, Amsterdam, assessed 1. This preliminary reference deals with at H F L 44 240 451 the amount owed the interpretation of Articles 92 and 93 in taxes for the period 1977 to 1978 of the EEC Treaty, concerning State aid by Heineken Brouwerijen BV, whose to undertakings. The case is principally registered office is at Zoeterwoude (The concerned with the definition of certain Netherlands). Heineken lodged an aspects of the ad hoc procedure which, in appeal against that assessment at the accordance with those provisions, the Gerechtshof [Regional Court], Amster­ Commission, the Member States and the dam, oņ 25 March 1981. It claimed that undertakings concerned are required to the assessment did not take into account follow in order to exercise or permit the fact that, in the period to which it adequate preventive control over na­ related, Heineken had invested H F L tional intervention measures. 32 287 582 in new buildings. That

1 — Translated from the Italian.