C-75/97

3. The Royal Decree of 14 June 1993 3 4. The 'Maribel ter' scheme, which was introduced a change in that scheme, termed introduced by the Royal Decree of 22 Feb- ruary 1994, 5 further increased the reduc- tion in the contribution borne by under- * Original language: Italian. 1 — OJ 1997 L 95, p. 25. 2 — The reduction was initially set at 6.17% of the wages of the workers concerned. By Royal Decree of 12 February 1993, 4 — The Belgian legislator identified the sectors concerned by it was fixed at BEF 1 875 per quarter for each worker reference to divisions 13 to 22 and 24 to 36 of the statistical employed. For undertakings employing fewer than twenty classification pursuant to Council Regulation (EEC) workers, the reduction in respect of their first five workers No 3037/90 of 9 October 1990 on the statistical classifica- was fixed at BEF 2 825 per quarter (BEF 3 000 as from tion of economic activities in the European Community 1 July 1993). (OJ 1990 L 293, p. 1). 3 — Arrêté royal du 14 juin 1993, modifiant l'Arrêté royal du 12 5 — Arrêté royal du 22 février 1994, modifiant l'Arrêté royal du février 1993 portant exécution de l'article 35, paragraphe 1, 12 février 1993 portant exécution de l'art. 35, paragra- dernier alinéa, de la loi du 29 juin 1981, établissant les phe 1, dernier alinéa, de la loi du 29 juin 1981 établissant principes généraux de la sécurité sociale des travailleurs les principes généraux de la sécurité sociale des travailleurs salariés (see Article 1). salariés (see Articles 2 and 3).

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5. The Commission adopted the decision on 4 December 1996. From the statement of reasons for the disputed measure it appears that the Commission had not Under Article 2 of the decision, the King- objected to the Maribel I scheme 'since it dom of Belgium was ordered to 'take was general and automatic'. The Maribel appropriate measures to terminate forth- bis and ter schemes, by contrast, were with the granting of the increased reduc- considered to be State measures granting tions in social security contributions re- aid, in that they accord an additional ferred to in Article 1' and to 'recover the reduction to undertakings which carry on illegal aid from the recipient undertak- their principal activity in one of the sectors ings... in accordance with the procedures most exposed to international competition. and provisions of Belgian law, with interest The amount of aid was perceived to be charged, from the date the aid was granted equal to the difference between the basic until the date it is actually repaid, at a rate reduction, available to all, and the equal to the percentage value on that date increased reduction, which, as I have said, of the reference rate used for the calcula- was reserved for a limited group of busi- tion of the net grant equivalent of regional nesses. aid in Belgium.'

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The general nature of the disputed mea- sures 6 — The concept of prohibited State aid hinges not only on the 'selectivity' of the measure but also on the effect it has on competition, as emerges from an unequivocal line of judgments (see, among many others, the judgment in Case 173/73 Italy v Commission (1974] ECR 709, para- graph 13), according to which 'the aim of Article 92 is to prevent trade between Member States from being affected by benefits granted by the public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or the production of certain goods. Accordingly, Article 92 does not distinguish between the measures of state intervention concerned by reference to 7. The applicant advances a radical argu- their causes or aims but defines them in relation to their effects. Consequently, the alleged fiscal nature or social aim ment in support of its first plea: it denies of the measure in issue cannot suffice to shield it from the that Maribel bis/ter has sectorial character- application of Article 92.' The Court therefore affirmed that the partial reduction of social charges in favour of under- istics and describes it instead as a general takings of a particular industrial sector constitutes aid within the meaning of Article 92 of the EC Treaty where arrangement inspired by the need to protect that measure is intended partially to exempt such under- takings from the financial charges arising from the normal the categories of worker it covers. Conse- application of the general system of compulsory contribu- quently, in the view of the applicant, the tions imposed by law (ibid., paragraph 15). State measures which the Court is called 7 — There may, of course, be sectoral measures which never- theless do not constitute State aid in that they do not entail upon to examine do not constitute an aid any direct or indirect transfer of State resources to businesses; see the judgment in Case C-189/91 Kirsam- subject to the prohibitions set out in the mer-Hack v Nurhan Sidal [1993] ECR I-6185 on the Treaty, and in particular to the obligations exclusion of small businesses from the scope of regulations protecting workers against unfair dismissal for which laid down in Article 93(3) to notify the German law provides.

8. In order to establish whether, as the sures, which the applicant asks us to take Belgian Government contends, we are deal- into account. ing with general measures which for that reason fall outside the scope of Arti- cle 92(1), it is obviously necessary to take account of the persons to whom the measures are addressed and to analyze whether the Maribel bis/ter scheme is directed at a category of undertaking considered in its entirety without introdu- 9. So, how should the measures adopted cing exemptions from any general scheme for the Maribel bis/ter scheme be assessed? which would otherwise apply to those The fact that they are sectoral measures —

tors ? 8It should be held, in my opinion, ing manual workers. Construed in this way, that a measure is general when it is aimed the Maribel scheme of 29 June 1981 was at achieving equality between businesses. based on provisions which could be con- The general principle of equality of treat- sidered general, as all undertakings without ment is recalled in the provision in Arti- discrimination were permitted to benefit from the reduction in contributions, subject cle 92(1) of the Treaty specifically prohi- to the conditions set out in the Law. biting measures whereby the State favours certain undertakings or the production of certain goods at the expense of others within the same category of undertaking, to which the provisions adopted should be capable of being applied.

tion. . . from the scheme of the general system in which it is set', which makes it possible to distinguish between sectorial ture by reference to the statistical classifi- · and general measures, was suggested by Mr Advocate cation laid down in Council Regulation General Darmon in the Sloman Neptun Case (Joined Cases ' C-72/91 and C-73/91 [1993] ECR I-903, paragraph 50). (EEC) No 3037/90 (see footnote 4 above).

11. The applicant government, however, justifies the selectivity of the disputed measures on the grounds that it intended to establish a general scheme, but to introduce it gradually on account of finan- cial constraints, more specifically the pre- sent lack of room for manoeuvre in the 10. Frankly, I do not see how, on the basis budget. It therefore contends that the of the provisions introduced in 1993 and Maribel bis/ter measures are not sectoral 1994, it can be maintained that Maribel bis measures aimed at favouring solely export- and ter introduce a system of a general ing undertakings but only the first stage of nature and scope in the same sense as the a reform which the Belgian authorities first Maribel scheme. On the contrary, the intended to extend gradually to other measures under examination derogate from sectors of the economy. This argument the previous scheme or amend it, upsetting cannot be entertained either, however. In the equilibrium of Belgian legislation on the case before the Court, the general social security in order to provide prefer- system is the one established by the first ential treatment only for certain businesses Maribel scheme, introduced by the Law of by repeatedly increasing the reductions. In 29 June 1981, while the changes intro- this way, an undeniable inequality was duced subsequently — in other words introduced in the category of undertakings Maribel bis and ter — are exceptions to at which the decrees of 1993 and 1994 (or derogations from) that system aimed at were directed. Those in some sectors were granting preferential treatment to under- favoured; others not. Moreover, the most takings most exposed to international persuasive proof of such a conclusion is to competition. So, we are not dealing with be found in the text adopted by the Belgian a social security reform to be achieved in legislature, which increased the reductions stages, on account of financial considera- in favour of the sectors particularly tions; instead, the measures in question exposed to international competition. This constitute precise derogations from an confirms the observations I have made and existing general arrangement, derogations reveals unequivocally the nature of the which consist in granting further reductions

in favour of a restricted group of businesses I am not persuaded by these arguments to the exclusion of others. It is immaterial either. In the second paragraph of Section that the number of undertakings allowed to IV of the disputed decision, the Commis­ qualify for the new and higher reductions sion, after having noted that the system in contributions has gradually been established by the Maribel bis/ter scheme increased. No general scheme has yet been relieves the recipient undertakings of some created in this way. At most, all that has of their costs and confers on them financial happened is that the area in which we advantages which improve their compe­ encounter sectoral preference has been titive position, stated the reasons which led widened, inevitably leading to State aid. it to consider that the scheme in question affected trade between Member States in the following terms: 'Given that under the rules, the granting of the additional reduc­ tion [in social security contributions] is explicitly reserved to undertakings doing business principally in one of the sectors most exposed to international competition, the goods produced and services provided by those firms compete, by definition, with those produced and provided by foreign undertakings, including those from other The impact on trade between Member Member States, and the aid in question States therefore affects intra-Community trade', in my opinion, this passage in the statement of reasons clearly illustrates the impact of Maribel bis/ter on trade between Member States: it is the very fact that the aid in question benefits undertakings most exposed to international competition that leads the Commission to conclude that it affects intra-Community trade. Moreover, 12. In its second plea the Kingdom of the Court has held that 'in certain cases the Belgium claims that the Maribel bis and very circumstances in which aid is granted ter schemes cannot be classified as State aid are sufficient to show that the aid is capable as they are not of such a nature as to affect of affecting trade between Member intra-Community trade. In any case, 9 States.' For that purpose, the Commis­ according to the applicant, the decision sion — again according to the case-law did not state adequate reasons with regard mentioned above — may confine itself to to the point under examination: in parti­ examining the characteristics of the aid in cular, since Article 92 of the Treaty defines order to determine whether, by reason of aid measures in terms of their effects, the Commission should have examined the the 'terms of the programme, it... is likely actual effects which the scheme at issue to benefit in particular undertakings has on trade between Member States. The engaged in trade between Member defendant therefore breached the obliga­ tion laid down in Article 190 of the Treaty to state the reasons on which its decision 9 — Judgment in Case 248/84 Germany ν Commission [19871 was based. ECR 4013, paragraph 18.

13. The Belgian Government's complaint 14. The Belgian Government also main- of insufficient reasoning is equally unfoun- tains that, even if the Maribel bis/ter ded. It is true that, according to the case- scheme had indeed been rightly classified law of the Court, while the very circum- as State aid, it would nonetheless have had stances in which the aid has been granted to be declared compatible with the com- may show that it is liable to affect trade mon market in accordance with Arti- between Member States and to distort cle 92(3)(c) of the Treaty. In relation to competition, the Commission must at least this aspect of the disputed decision, the set out those circumstances in the statement applicant government again contends that of the reasons for its decision. 12 However, the Commission breached its obligation to where the Commission has explained the state the reasons on which its decision was respects in which the effect on trade based. between Member States is obvious, it is not required to carry out an extremely detailed economic analysis. 13 In my opinion, the information required by the Court is set out clearly in the statement of reasons for the contested measure, namely The provision on which Belgium relies is among those laying down the types of aid

10 — Ibid., paragraph 18. 11 —Judgment in Joined Cases C-278/92 to C-280/92 Spain v 14 — 'If the Commission were required in its decision to demonstrate the real effect of aid which had already been Commission [1994] ECR I-4103, paragraph 40. granted, that would ultimately favour those Member 12 — See, among many others, the judgment in Joined Cases States which grant aid in breach of the duty to notify laid C-329/93, C-62/95 and C-63/95 Germany et al. v Com- down in Article 93(3) of the Treaty, to the detriment of mission [1996] ECR I-5151, paragraph 52. those which do notify aid at the planning stage' (judgment 13 — See the judgment in Case T-214/95 Vlaamse Gewest v in Case C-301/87 France v Commission [1990] Commission [1998] ECR II-717, paragraph 67. ECR I-307, paragraph 33).

which may be considered compatible with theless being incapable, by its very nature, the common market. Article 92(3)(c) of achieving any of the objectives of the relates to aid to facilitate the development aforesaid exceptions.' 1 5 As regards the of certain economic activities (or of certain present case, it is easy to see that the main economic areas), provided that such aid purpose of the aid at issue was precisely to does not adversely affect trading conditions reduce the costs of exporting undertakings to an extent contrary to the common or undertakings competing with foreign

takings. In this regard, the Commission 15. In my opinion, the Commission's view cites established case-law of the Court, is correct. Above all, as regards the claimed according to which 'operating aid, that is to absence of reasons for the decision, it say, aid intended to relieve an undertaking hardly need be noted that the disputed of the expenses which it would itself decision sets out an exhaustive and detailed normally have had to bear in its day-to statement of the reasons which led the day management or its usual activities, C o m m i s s i o n t o refuse t o g r a n t t h e deroga does not in principle fall within the scope of 15 — Judgment in Case T-459/93 Siemens ν Commission [1995] Article 92(3) aforesaid.

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tion provided for in Article 92(3)(c) of the exceeded the limits of its discretionary Treaty. power. For that reason, the third plea in the application should, in my opinion, be dismissed.

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The Belgian Government observes, sec­ In any event, it is entirely inappropriate to ondly, that recovery of the amounts paid maintain that the sanction is dispropor­ is impossible because of insurmountable tionate to the infringement: as the Court administrative difficulties. The amounts made quite clear long ago, repayment of would have to be recovered separately amounts received by the beneficiaries of aid from around 2 000 undertakings and is the logical consequence of a finding that would require retrospective verification of the aid is unlawful. Repayment is therefore both the number of manual workers not a sanction but a measure aimed at employed by each of the beneficiaries in restoring the competitive balance that had the quarterly periods in which the criticized been upset by the granting of an unlawful scheme applied and the amount of the aid. That is why, according to case-law, 'the reduction granted to each of them. In the recovery of State aid unlawfully granted for meantime, moreover, many undertakings the purpose of re-establishing the pre­ have closed or gone bankrupt. viously existing situation cannot in princi­ ple be regarded as disproportionate to the objectives of the Treaty in regard to State aids'. 18

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agree with the Commission that an express 19. Finally, as regards the second plea statement of reasons is necessary only in concerning the recovery of the aid, I would the exceptional cases in which, on account merely recall that, although the data pre- of specific circumstances, recovery appears viously gathered and examined for the impossible or inappropriate. granting of the disputed amounts cannot admittedly be used for the recovery thereof, any procedural or other difficulties in implementing the contested measure can- not, according to the Court, have any bearing on the lawfulness of the measure for the purposes of Article 73 of the Treaty. 21 Furthermore, it is for the Com- The Commission's alleged obligation to mission, and not the Court, to consider any order the immediate suspension of the aid unforeseen and unforeseeable difficulties by means of an interim decision, as argued encountered in the implementation of a here by the applicant government, appears decision on State aid or any consequences to have no foundation in Community case- overlooked by the Commission when law. While the Court has recognized that adopting the measure. 22 I therefore con- the Commission has the power to adopt sider that I must adhere to those rulings of such a conservatory measure when it the Court. They constitute consistent case- embarks on examination of unnotified law, which prompts me to propose the aid, it by no means imposes such an rejection of this final plea of the applica- obligation on it. 20 tion.

(2) order the Kingdom of Belgium to pay the costs.

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