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through State resources in any form what- within a period of time to be determined by soever which distorts or threatens to distort the Commission. competition by favouring certain undertak- ings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.' If the State concerned does not comply with this decision within the prescribed time, the Commission or any other interested State may, in derogation from the provisions of Articles 169 and 170, refer the matter to the Court of Justice direct.' 4. The exceptions to this general prohib- ition are set out in paragraphs (2) and (3) of the same article. 4

7. Under Article 93(3) of the Treaty, '[t]he Commission shall be informed, in sufficient time to enable it to submit its comments, of 5. Article 93 of the EC Treaty (now any plans to grant or alter aid. If it Article 88 EC) sets out the procedural considers that any such plan is not com- arrangements governing the granting of patible with the common market having State aid. regard to Article 92, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.' 6. The first and second subparagraphs of Article 93(2) provide as follows:

B — The notice 'If, after giving notice to the parties con- cerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not 8. The Commission has issued notices set- compatible with the common market hav- ting out its policy on de minimis aid. The ing regard to Article 92, or that such aid is most recent of these was issued in 1996. It being misused, it shall decide that the State is that notice that concerns us in the present concerned shall abolish or alter such aid case. 5

'In 1992, 8... the Commission introduced 14. This de minimis aid, which does not what is known as a de minimis rule: this have to be notified to the Commission, can sets a threshold figure below which Article 92(1) can be said not to apply, so 10 — To make the most effective use of the scarce human and that a measure need no longer be notified in material resources available to the Commission and also to advance to the Commission under rationalise the work of national authorities (first sentence of the second paragraph of the notice). Article 93(3)(1)'. 9 11 — First, it had become clear to the Commission that the rule did not cover some aid measures which quite clearly did not threaten to distort competition and trade between Member States to any perceptible degree and, secondly, it bad proved difficult to establish that the conditions laid 6 — This is one of four conditions for the operation of the down were being met, particularly where aid of this kind prohibition laid down by Article 92( 1 ) of the Treaty. was combined with aid under other schemes approved by 7 — First paragraph. the Commission (second sentence of the second paragraph of the notice). 8 — Community guidelines on State aid for small and medium- sized enterprises, point 3.2 (OJ 1992 C 213, p. 2). 12 — Ibidem, first indent. 9 — Second paragraph. 13 — Ibidem, third indent.

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be additional to other aid granted under II — Facts and procedure schemes approved by the Commission. 14

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operators located within 10 km of the subsidy per service station rather than per Netherlands-German border and a subsidy applicant. The intention behind this pro- of NLG 0.05 per litre to be paid to posal was to eliminate the imbalance that operators located between 10 km and 20 had been created between service stations km of the border. 19 It also takes account of in terms of the subsidy payable. Some the fact that in the event of an increase in applicants, who owned several service German excise duty the differential in stations, were receiving only EUR 100 000 excise rates justifying the subsidy scheme in total, whereas others, who owned only would narrow. In that event, the subsidies one, were receiving the same amount. would then be reduced by 10/11 and 5/11 respectively of the equivalent in Nether- lands currency of the increase in German excise duty. If as a result of such a reduction the level of the subsidies paid to operators located within 10 km of the border fell to below NLG 0.025 per litre, the temporary scheme would cease to 22. The Netherlands Government was operate altogether. unsure whether this proposal was compat- ible with the notice on account of the cumulation of subsidies payable to under- takings owning several service stations.

20. In order to comply with the criteria laid down in the notice, the temporary scheme sets an aid ceiling equal to EUR 100 000 over a period of three years (from 1 July 23. To make sure that the proposed 1997 to 30 June 2000 inclusive). The aid amendment of the temporary scheme was provided for under the scheme is aid pet- in accordance with the notice, the Nether- applicant. This term is defined as meaning lands authorities informed the Commission any natural or legal person on whose behalf of the proposal by letter of 14 August 1997 and at whose risk one or more service and specified: stations are operated, and the heirs and assignees of such persons. 20

24. In accordance with Article 93(3) of the 25. The Commission notes that the pur- Treaty, the Commission conducted a pre- pose of the aid provided by the Netherlands liminary examination of the temporary State to service stations located near the scheme and the proposed amendment German border is to protect the turnover of thereof in order to satisfy itself that that the dealers concerned against competing scheme was not likely to favour aid cumu- petrol outlets in the immediate vicinity of lation of the kind prohibited under the their service stations. It considers that the terms of the notice. The Commission was operation of the temporary scheme makes concerned that the scheme might enable the the obligation imposed by the price man- big oil companies to benefit indirectly from agement clauses redundant. For in the aid granted to their tied distributors. It absence of circumstances to trigger that based these concerns on the inclusion of obligation, it would be very easy for the oil 'price management clauses' in exclusive companies to avoid the burden of their purchasing agreements entered into undertaking. In other words, since the between the oil companies and their dis- forecourt discounts granted by dealers to tributors. The Commission defines such protect their market share would have been clauses as follows: paid for by the aid received from the Netherlands State, the oil companies would have no cause to take action under a price management clause. Moreover, the Com- mission considers it possible that the noti- fied scheme would have an effect on competition and trade between Member States (that is, that it would have a disruptive effect on the petrol sector in other Member States, in particular the Kingdom of Belgium and the Federal Republic of Germany). 'The purpose of a PMS [price management system] clause is to protect the dealer's turnover against competing petrol outlets in the immediate vicinity of his service station. The clause usually stipulates that the oil company may bear part of the cost of the forecourt discount granted by the dealer in so far as domestic and/or inter- 26. In order to determine whether the aid national market conditions make a tem- could also have a cumulative effect, the porary or long-term adjustment of these Commission requested the Netherlands discounts desirable or necessary. Consul- authorities for various information con- tations between the parties are often cerning: necessary before such reductions are intro- duced. The actual aid provided by the supplier is determined by means of a distribution table or participation arrange- ments. Its amount is normally indicated on the invoice.' 22

III — The decision, the application and '... in particular circumstances, the de the forms of order sought minimis rule may be interpreted as a rebuttable presumption, namely that, even though the amount of aid involved is small and therefore falls below the de minimis threshold, the rule does not apply if the aid has an effect on trade and competition A — The contested decision between the Member States.'

28. According to the Commission, there were two grounds warranting the initi-

31. The Commission decided against bas- 23 — OJ 1998 C 307, p. 10. ing its assessment of the disputed measures

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on the second ground. According to its 32. In the decision, the Commission classi- reasoning: fied the service stations concerned into six categories:

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do not work at their own risk and are 34. In the case of the third category, the not free to choose their suppliers. The Commission decided that the possibility of Commission subdivides this category prohibited aid cumulation could not be into two subcategories: a 'pure' Co/Co discounted: the aid granted to the service subcategory, where the service station stations concerned was incompatible with is owned by the oil company and the common market and with the function- operated by it, 28 and a 'de facto' ing of the EEA Agreement, in so far as it Co/Co subcategory, where the same exceeded EUR 100 000 per recipient over a dealer has applied for aid more than three-year period. 33 once and therefore appears several times in the list of eligible recipients; 29

35. In the case of the fourth category, also, the Commission took the view that it was — a category comprising Do/Do service possible that companies owning and oper- stations operating a price management ating several service stations would receive system, under which the oil company aid which, when cumulation is taken into pays for a part of any reduction by the account, would exceed EUR 100 000 per dealer in forecourt prices; 30 recipient over a three-year period. 34

'(1) dismiss the action for annulment;

B — The application and the forms of order sought

(2) order the applicant to pay the costs.'

38. The application of the Netherlands Government was lodged at the Court Registry on 9 October 1999.

IV — Discussion 39. The Netherlands Government claims that the Court should:

A — The general pleas put forward by the Netherlands Government '(1) annul Articles 2 and 3 of the Commis- sion Decision of 20 July 1999, notified on 5 August 1999, on the State aid implemented by the Netherlands for 41. The Netherlands Government puts for- 633 Netherlands service stations ward general pleas alleging infringement of located near the German border (noti- the absolute nature of the de minimis rule fied under document number C(1999) laid down in the notice and the con- final); sequences flowing from that infringement. According to the Netherlands Government, that infringement had the consequence of 36 — Paragraphs 88 to 93 of the decision. setting at naught the general principles of 37 — Ibidem, paragraphs 94 to 102. 38 — Article 2 of the decision. legal certainty, equal treatment and pro- 39 — Ibidem, Article 3. tection of legitimate expectations.

43. The Netherlands Government claims that by refusing to find the temporary Assessment scheme and the proposed amendment of that scheme compatible with the notice, the Commission had introduced an exception to the de minimis rule not provided for in the notice. According to the Netherlands Government, in so far as the aid paid to the 45. As a preliminary matter, it should be border service stations does not exceed the noted that the action brought by the threshold of EUR 100 000, the notice must Netherlands Government for the annul- apply. Under the notice, aid that falls ment of the Commission's decision is within the de minimis rule did not need to essentially predicated on the binding char- be notified and did not fall within the scope acter of the scope and effect of the de of Article 92( 1 ) of the Treaty because it had minimis rule as set out in the notice. The no effect on trade between Member States. issue of the legality of the notice under the Treaty rules would not have been devoid of interest in the light of your recent case-law 40 — Paragraphs 68 and 69 or the decision. which appears to censure the purely

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48. As we have seen, the notice interprets 41 — The Court has held that '... the relatively small amount of aid or the relatively small size of the undertaking which one of the conditions for the application of receives it does not as such exclude the possibility that the Article 92(1) of the Treaty. It states that: aid, in so far as it satisfies the conditions laid down by Article 92(1) of the Treaty, may be incompatible with the common market' (Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 39). However, one cannot pass over in silence the uncertainties in the case-law of both the Court of Justice and the Court of First Instance with respect to the approach taken by the Commission in the notice (see Keppenne, J-P., Guide des aides d'État en droit communautaire, Bruylant, Brussels, 1999 (point 168 and the decided cases referred to under that point). Given the divergences in the case-law referred to, the illegality of the de minimis rule in the light of the provisions of Article 92(1) of the Treaty is therefore not manifest. 42 — Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 67. See also Case 'Clearly, any financial assistance given by C-210/98 P Salzgitter v Commission [2000] ECR I-5843, the State to one firm distorts or threatens to in particular paragraphs 56 and 57. In that case, Advocate General Jacobs suggested that the Court should not be precluded from raising of its own motion a manifest and grave substantive illegality, for example the infringement of certain rules of the Treaty such as Article 92 (points 137 43 — The difference in terminology used by the Commission is to 143 of the Opinion). However, even if Advocate General Jacobs's suggestion were to be adopted by the immaterial for the purposes of the point being considered. Court at some future time, it is my view, as I have said (see 44 — See, in particular, Case C-313/90 CIRFS and Others v footnote 41), that the illegality of the notice is not Commission [1993] ECR I-1125, paragraph 35, and Case manifest. Accordingly, the possibility of the Court raising C-311/94 IJssel-Vliet [1996] ECR I-5023, paragraph 42. such an illegality of its own motion is to be rejected. 45 — See the Opinion of Advocate General Lenz in IJssel-Vliet.

46 — First paragraph. 47 — Ibidem, second paragraph. 49 — See point 31 of this Opinion. 48 — See footnote 44. 50 — See point 30 of this Opinion.

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without being required to notify it in on compliance with the non-cumulation advance to the Commission. That aid is requirement.54 The notice also imposes a presumed not to have any effect on trade duty on the Commission to monitor com- between Member States on condition that pliance with this requirement. it does not exceed the sum of EUR 100 000. But it is the settled case-law of the Court that all exceptions must be interpreted strictly. 51 Consequently, the conditions laid down by the notice must be scrupu- 59. And it is in fact this non-cumulation lously complied with. requirement which the Commission alleges that the Netherlands Government has not complied with. 55 Therefore the Commis- sion cannot be accused of having set new conditions for the application of the de minimis rule. Accordingly, the plea alleging infringement of the absolute nature of that 56. The first requirement imposed on rule must be rejected. Member States is that the aid they grant must under no circumstances exceed EUR 100 000 over a three-year period beginning when the first de minimis aid is granted. 52 The plea alleging infringement of the principles of legal certainty, protection of legitimate expectations and equal treat- ment

57. The second requirement imposed on Member States is to facilitate the Commis- sion in discharging its monitoring func- 60. The Netherlands Government claims tion. 53 that the Commission infringed the absolute nature of the de minimis rule by introduc- ing an additional condition for its appli- cation. By so doing, it had violated funda- mental principles of Community law, namely the principles of legal certainty, protection of legitimate expectations and 58. Lastly, the notice provides that appli- equal treatment. cation of the de minimis rule is conditional

— drew a distinction between the 'pure' and 'de facto' categories of Co/Co service stations; 63. The Netherlands Government notes that, where it relies on the infringement of the de minimis rule in these six specific pleas, it does so in each instance in conjunction with the infringement of the — inferred the existence of indirect aid to principles of legal certainty, equal treat- the oil companies to which service ment and the protection of legitimate stations were tied by exclusive purchas- expectations.

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The first plea in law decide that the issue of compliance with the requirement of non-cumulation of aid was to be determined having regard to the actual recipient of the de minimis aid. By so deciding, it had acted contrary to the Arguments of the parties rules established by the notice and the principles of legal certainty, equal treat- ment and protection of legitimate expec- tations.

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irrebuttable presumption does not apply Assessment and the effect of the aid measure concerned on trade and competition must be assessed in full. Infringement of the obligation to state reasons

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75. The Netherlands Government com- where the same dealer applied for aid more plains that the Commission did not comply than once and therefore appears several with the formal requirements to state times in the list of eligible recipients. reasons. According to the Netherlands Government, the decision did not enable it to ascertain the reasons why the Com- mission found the proposed amendment of the temporary scheme to be incompatible with the de minimis rule. 79. The Commission thus explains clearly and unequivocally that whenever it ident- ifies cases of aid cumulation, that is to say when a single applicant is in a position to receive de minimis aid more than once, it 76. It can be seen from the disputed will deem that the notice does not apply. decision that the Commission did set out in a general way the factors it proposed to take into consideration in order to deter- mine whether the conditions for the oper- ation of the de minimis rule were satisfied by the temporary scheme and by the proposed amendment of that scheme. 80. Even if the Commission did not for- mally set out the reasons why the proposed amendment of the temporary scheme did not satisfy the de minimis conditions, paragraphs 74 and 82 of the decision 77. Thus, at the end of paragraph 74 of the enabled the Netherlands Government to decision, the Commission states the follow- ascertain the reasons of fact and of law on ing: the basis of which the Commission found that the proposed amendment did not comply with the notice.

The error of assessment of the non-cumu- lation condition 87. Given that I have proposed that the plea alleging infringement of the condition of non-cumulation is not well founded, I cannot but propose that you reject the plea based on the infringement of the principles 84. The proposed amendment of the tem- of legal certainty, equal treatment and porary scheme, it may be recalled, seeks to protection of legitimate expectations relied eliminate an imbalance that had emerged upon by the Netherlands Government. 57 between service stations as regards the amount of subsidies paid out. It makes it the rule that aid is payable in respect of the individual service station. In other words, it makes it possible for the owners of several service stations to receive as many subsidies The second plea in law as the number of service stations they own. There is therefore a genuine risk of the de minimis threshold being exceeded by indi- vidual applicants, contrary to the notice. Arguments of the parties

85. In those circumstances, it must be 88. By the second plea in law, the Nether- concluded that the Commission did not lands Government contends that by making exceed its discretion in finding that, because it entails an infringement of the non-cumulation requirement, the proposed 5 7 — See point 66 of this Opinion.

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a distinction between the categories of stations. However, it failed to specify the 'pure' 58 and 'de facto' 59 Co/Co service factual and legal basis for this finding. In stations, the Commission is in breach of particular, the Netherlands Government Article 92(1), the de minimis rule, the argues that in listing the service stations principles of legal certainty, equal treat- comprised in this category, the Commission ment and protection of legitimate expec- also failed to identify the oil companies tations, the requirement flowing from which it claimed each owned several service Article 189 of the Treaty for the terms of stations and received de minimis aid more a decision to be specified with sufficient than once. particularity and the obligation to state reasons imposed by Article 190 of the Treaty.

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old of EUR 100 000 is exceeded. The 97. As to the Netherlands Government's situation was therefore no longer within the argument that insufficient reasons are given scope of the notice but within that of for the decision, 61 two comments are Article 92( 1 ) of the Treaty. called for.

94. It also points out that because of the absence of a response by the Netherlands 98. First, the Commission has stated, with­ Government to repeated requests and an out contradiction by the Netherlands Gov­ order made by it in relation to the owner­ ernment, that it did not receive the full ship structures of the service stations in information it required in order to identify particular, it could base its decision only on precisely which service stations belonged to the information it had in its possession. It each of the three categories Do/Do, Co/Do had clearly stated that the information and Co/Co. In paragraph 64 of the supplied, despite being insufficient in some decision, the Commission explains that respects and entirely lacking in others the Netherlands authorities simply for­ (paragraphs 76 to 81 of the decision), had warded the completed questionnaires enabled it to carry out the classification set returned by the service stations without out in paragraph 82 of the decision. any substantiation of the information set out on those forms. It points out, in particular, that the service stations classi­ fied themselves as falling into one of the three categories without providing any supporting evidence. The Commission 95. The Commission considers that it com­ notes, again without this being denied by plied with the obligation to state reasons the Netherlands authorities, that the having regard to the circumstances of the Netherlands Government drew up its list case. on the basis of the replies received from the applicants without further substantiation. It states that it, on the other hand, drew up its classification on the basis of the agree­ ments between the oil companies and their distributors, which were supplied to it by Assessment the Netherlands Government, and on the basis of its own statistical data.

light of the inadequate information that it aid without notifying the Commission in had been given, the Netherlands Govern- advance. But, as we have seen, it is the ment explained its failure by a general settled case-law of the Court that all consideration. According to the Nether- exceptions to a general rule must be strictly lands Government, the obligation of construed. Were I to adopt the analysis of Member States to supply information is the Netherlands Government, I would have necessarily less extensive in relation to the to conclude that the principle of strict de minimis aid provided for under the interpretation of exceptions to a rule must notice than under the provisions of be set aside in the case of just such an Articles 92 and 93 of the Treaty. It argues exception. The principle of strict construc- that the notice was adopted with a view to tion of exceptions to a rule would therefore administrative simplification both for not be observed if the analysis of the Member States and for the Commission. Netherlands Government were adopted. It would therefore be contrary to this objective of administrative simplification to increase the information burden on Member States. Since the temporary scheme and the proposed amendment of that scheme are based specifically on the notice, the Netherlands Government con- siders that, in relation to the operation of the de minimis rule, the extent of its 101. The notice requires the Commission information obligation is less than under to see to it that the strict conditions for the the ordinary rules governing State aid. operation of the de minimis rule are com- Consequently, it contends that it was plied with. To allow a Member State that entitled to assume, with complete con- had invoked the de minimis rule not to fidence, that the aid granted to the appli- comply fully and scrupulously with its cants did not need to be notified. information obligation would make the Commission's task of review difficult if not impossible to carry out.

106. It should be recalled that the legality of Commission decisions cannot be called into question on the basis of arguments relating to the manner in which the decision is to be implemented such as the claim that implementation is impossible 103. In so far as the Netherlands Govern- because of difficulties in identifying the ment has not fulfilled its duty of cooper- addressees of the order of recovery. ation during the administrative procedure, it cannot subsequently complain that the Commission has made an error of assess- ment or has given insufficient reasons for its decision. 107. The Court has consistently held that, in such circumstances, a Member State 'which encounters unforeseen difficulties in implementing an order for recovery, [could] have submitted those problems for consideration by the Commission. In such a case the Commission and the Member State concerned must, in accordance with the duty of genuine cooperation stated in particular in Article 5 of the Treaty, work 104. Secondly, it appears that the Nether- together in good faith with a view to lands Government does not deny that the overcoming the difficulties whilst fully border service stations which applied for observing the Treaty provisions, in particu- the de minimis aid include service stations lar the provisions on aid'. 65 in the Co/Co category, belonging to both the 'pure' Co/Co and 'de facto' Co/Co subcategories.

63 — By analogy, see Case C-364/90 Italy v Commission [1993] 108. Consequently, if the Netherlands ECR I-2098, paragraph 20. Government was having difficulties with 64 — Ibidem, paragraph 22. Sec also the Opinion of Advocate General Tesauro in 'Tubemeuse' (Case C-142/97 Belgium v Commission [1990] ECR I-959): 'the extent of the reasoning required of the Commission can only he proportional to the information received from the Member 65 — See, i n particular, Case C-303/88 I t a l y v Commission States' (point 13, last paragraph). [1991] ECR I-1433, paragraph 58.

109. It follows from the foregoing that the second plea raised by the Netherlands Government is not well founded and must 113. It makes the point that in the majority be rejected accordingly. of cases these clauses are variable in terms of content and do not impose an uncon- ditional obligation on the oil companies to contribute to reductions in forecourt prices. In most instances, the right to instigate such reductions and implement the clauses lies with the oil companies, who would agree to operate them only if their market share was The third plea in law under threat. However, the price differen- tials with Germany would have had no impact on the respective competitive pos- itions of the oil companies in the Nether- 110. By its third plea in law, the Nether- lands market, since all would have been lands Government claims that by inferring affected to the same degree. the existence of indirect aid to the oil companies with which service stations had exclusive purchasing agreements contain- ing a price management clause, the Com- mission had infringed Article 92(1) of the Treaty, the de minimis rule, the principles of legal certainty, equal treatment and protection of legitimate expectations, and the obligation to state reasons imposed by 114. In any event, the Netherlands Govern- Article 190 of the Treaty. ment maintains that it could not foresee that the oil companies would benefit indi- rectly by virtue of the price management clauses, which are confidential, from the aid granted under the temporary scheme. An indirect and contingent advantage of 111. According to the Netherlands Gov- this kind accruing to oil companies could ernment, indirect aid is not covered by not be regarded as State aid. The advantage Article 92(1) of the Treaty unless its recipi- arises only as a result of contractual ent can be identified directly or immedi- arrangements to which the national auth- ately from the scope or purpose of the orities are not in any way a party and national measure concerned. which they do not even know exist. They

116. In particular, measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the 120. The Commission claims that the oil word, are similar in character and have the companies are the indirect recipients of the same effect are considered to constitute de minimis aid provided by the Netherlands aid. 66 Government to service stations located near the German border. It argues that this aid from the Netherlands State allowed the oil companies to avoid operating the price management clauses in their agreements with their distributors. According to the 117. Furthermore, the Court has consist- decision, ently held that the Commission must observe the Treaty rules and ascertain the 67 — See, in particular, Case 310/85 Deufil v Commission [ 1 9 8 7 ]ECK 901, paragraph 8, Case C-241/94 France v 66 — See, in particular, Germany v Commission, supra, Commission [1996] ECR I-4551, paragraphs 19 and 20, paragraph 25, and the other cases referred to in that and Ladbroke Racing v Commission,supra, paragraph 7 9 . paragraph. 68 — See Italy v Commission, supra, paragraph S'7.

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121. According to the Commission, the aid provided by the Netherlands State to ser- vice stations located near the German border is aimed at protecting the turnover of those operating them against competing 124. With regard to the circumstances in petrol outlets in the immediate vicinity of which the temporary scheme operates, the their service stations. It considers that the purpose of the aid paid by the Netherlands application of the temporary scheme makes Government is to prevent service stations the obligation contained in the price man- located near the German border losing agement clauses redundant. For in the business as a result of the higher petrol absence of circumstances to trigger that prices brought about by the increase in obligation, the oil companies would avoid excise duty in the Netherlands. The dif- the burden of their undertaking. In other ferential between the rates of excise duty words, since the forecourt discounts granted by dealers to protect their market share would have been paid for by the aid 69 — See points 24 and 25 of this Opinion. 70 — Contrary to what is required by the Court (see, in received from the Netherlands State, the oil particular, Germany v Commission, supra, paragraph 26).

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resulting from that increase and the rates of rates, in other words if international mar- excise duty in force in Germany prompted ket conditions no longer justify the pay- a fear that those service stations' customers ment of aid, the level of subsidy will be would take their business to competing reduced accordingly. service stations located across the border on account of the more competitive prices in Germany.

72 — Idem. 71 — See paragraph 84 of the decision. 73. — Idem.

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clauses with the oil companies, the latter 131. In those circumstances, the Commis- would be obliged by the domestic and sion did not exceed the limits of its international market situation to act upon discretion by inferring the existence of their obligations under the price manage- indirect aid to the oil companies with ment clause. Otherwise, in the absence of which the service stations have exclusive State aid, their distributors would not have purchasing agreements containing price the ability to offer reductions in forecourt management clauses on the sole basis of prices with a view to retaining their cus- the existence of those clauses. tomers. The fear of seeing customers taking their business to competitors in the immedi- ate vicinity offering more attractive prices would then be entirely genuine and serious. Such competitors might include, in particu- lar, the operators of service stations in Germany, where rates of excise duty are 132. It follows from the foregoing that the lower than in the Netherlands, or Nether- third plea raised by the Netherlands Gov- lands service stations benefiting from the ernment is not well founded. It must be provisions of the temporary scheme. In rejected accordingly. those circumstances, it seems to me highly likely that the oil companies would exercise the price management clause at the request of their distributors so as to avoid losing market share. Where de minimis aid meas- ures are implemented in the case of service stations bound by exclusive purchasing agreements containing price management clauses, I therefore take the view that the The fourth plea in law oil companies are the real, albeit indirect, recipients of the aid. Hence the possibility of aid cumulation exists.

134. In general, the Netherlands Govern- 136. According to the Netherlands Gov- ment contends, as its principal argument, ernment, the Commission's claim that no that the absence of the information information was supplied is incorrect in required by the Commission does not relation to service stations 297, 372 and justify the latter's fear of cumulation of 433. aid in respect of the service stations con- cerned. The Netherlands Government points out, as it did in relation to the first plea in law, that in either of the possible scenarios — those of an applicant owning either one service station or several — the 137. The Commission maintains that it service station receiving the aid could not in received no information in relation to any circumstances receive that aid more service stations 297, 372 and 433. It than once. As the non-cumulation con- claims, moreover, that if the decision con- dition had been met, the Commission ought tains inaccuracies these are attributable to to have found that Article 92(1) of the the inaccuracy or insufficiency of the Treaty was not applicable. information supplied by the Netherlands Government.

decision was adopted. 74 A Member State one of the three categories (Do/Do, Co/Do cannot rely on information it failed to or Co/Co) without providing any suppor- provide to the Commission during the ting evidence, while others claimed to be administrative procedure in order to chal- independent but failed to substantiate this'. lenge the legality of a decision concerning State aid. 75 This is clearly the case where the State concerned has refused to reply to a specific request for information on the part of the Commission. 76 142. The text of this paragraph shows that the Commission did set out the reasons why the information provided was insuffi- cient. Contrary to the claims of the Nether- lands Government, the Commission does not use this term — insufficient infor- 140. The decision notes that the Commis- mation — only for those replies that do sion was provided with no information at not include a copy of the exclusive agree- all on 59 service stations and with insuffi- ments but for all replies which are not cient information on 191 service stations. 77 substantiated or supported by evidence. An instance of this is where service stations themselves decide, without offering any substantiation, on their classification in one or other of the categories identified by the Commission. 78 141. The Commission spells out what it means by 'insufficient information'. In paragraph 64 it says:

received no information, the error of assess- 147. Given those circumstances, the fact is ment alleged against the Commission has that the Netherlands Government has not not been proved. adduced evidence capable of sustaining the claim that the Commission exceeded the limits of its discretion by declaring incom- patible with the de minimis rule aid to service stations in respect of which the Netherlands authorities did not provide any information or provided only partial information. 145. Furthermore, the information sought by the Commission is relevant. That infor- mation is necessary in order to establish whether dealers/distributors belong to the Do/Do, Co/Do or Co/Co categories. 79 That classification is not academic since it forms the basis for determining the actual recipi- ent of the aid and checking that there are 148. It follows from the foregoing that the no cases of aid cumulation contrary to the Commission did not make a manifest error notice. It is important, for example, that of assessment by declaring that aid granted the Commission satisfy itself that appli- to service stations in respect of it received cants for de minimis aid operate the service no information or only insufficient infor- stations for which aid has been applied at mation does not fall within the scope of the their own risk and are not employees of an de minimis rule. The fourth plea raised by oil company. Likewise, the non-cumulation the Netherlands Government is therefore condition makes it necessary to check that not well founded and must be rejected. the exclusive purchasing agreements do not contain price management clauses.

Assessment 153. Since the Netherlands Government failed to provide that information to the Commission and thereby failed in its duty of cooperation during the administrative phase, it cannot subsequently complain that the Commission made an error of assessment or gave insufficient reasons for 150. It is settled case-law that the Com- its decision. 82 mission cannot be impugned for not have taken into consideration material not avail- able to it at the time it carried out its task. In this case, the Netherlands Government claims that the disputed measures were motivated by environmental concerns and 154. In those circumstances, I propose that that the decision fails to take account of the Court find that the Netherlands Gov- that fact. ernment has not adduced evidence suffi- cient to sustain the claim that the Commis- sion exceeded the limits of its discretion by failing to consider the environmental objec- tive which the competent Netherlands authorities claimed to have been pursuing.

151. It must be observed that the Nether- lands Government has adduced absolutely no proof or prima facie evidence in support of the claim that the national legislation concerned was prompted by environmental 155. It follows from the foregoing that the considerations. On the contrary, during the Commission did not make an error of administrative procedure, the Netherlands assessment. The fifth plea raised by the Government submitted that the temporary Netherlands Government is therefore not scheme was based on economic grounds. 80 well founded and must be rejected.

157. According to the Netherlands Gov- ernment, the decision does not enable it to identify with certainty either the amounts to be recovered or the parties from whom recovery is to be made. 160. Furthermore, it is settled case-law that the legality of decisions of the Commission cannot be called into question on the basis of arguments relating to the manner of implementation of the decision such as a 158. The Netherlands Government further claim that it cannot be implemented contends that the Commission had been because of difficulties with identifying the informed since 18 August 1997 — the addressees of the order of recovery. date on which the letter of conditional notification was lodged — of the existence of the temporary scheme and of the pay- ment under that scheme of de minimis aid to service stations eligible under the rel- evant national provisions. It therefore maintains that, by failing to express 161. It is also settled case-law that when unequivocally its opposition to the imple- State aid is declared incompatible with the mentation of the temporary scheme, the Treaty the recovery of that aid must be Commission infringed the principle of ordered. 83 cooperation in good faith by which it is bound under Article 5 of the Treaty.

Assessment 162. The claims concerning the vagueness of the decision and the resulting inability of the Netherlands authorities to identify with certainty the amounts to be recovered and

159. As we have seen, it is settled case-law 83 — Sec. for example, Ladbroke Rjang v Commission, supra, that the legality of a decision concerning paragraphs 18" and 189.

167. It should also be pointed out that the 164. The file shows that on 22 September Commission expressed its doubts as to the 1997, that is one month after the con- compatibility of the temporary scheme ditional notification, the Commission with the Treaty and with the notice in a requested the competent authorities for clear and unequivocal manner as soon as it additional information in order to enable was in possession of sufficient information it to assess whether the temporary scheme to enable it to form a view. The argument and the proposed amendment of that in relation to the infringement of the scheme were in accordance with the principles of legal certainty and the pro- requirements of the notice. 85 Following tection of legitimate expectations is there- several reminders by the Commission and fore not well founded. requests for extensions of time on the part of the Netherlands Government, the Com- mission decided, given the absence of satis- factory replies, to initiate the Article 93(2) procedure. 86 168. I am accordingly of the opinion that the Netherlands Government has not 84 — See point 102 of this Opinion. 85 — Paragraph 1 of the decision. 86 — Ibidem, paragraph 2. 87 — Ibidem, paragraphs 20 to 23.

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adduced grounds for believing that the V — Costs Commission exceeded its discretion by deciding that the Netherlands Government must require repayment of the aid on account of its incompatibility with Article 92(1) and the de minimis rule.

170. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be 169. It follows from the foregoing that the ordered to pay the costs, if they have been Commission did not make a manifest error applied for. Since the Commission has of assessment. The sixth plea raised by the applied for costs and the Kingdom of the Netherlands Government is not well Netherlands has been unsuccessful, the founded and must therefore be rejected. latter must be ordered to pay the costs.