Accordingly, on 21 July 1997, the Kingdom of the Netherlands adopted a temporary regulation on subsidies payable to service stations located near the German border (the Tijdelijke regeling subsidie tankstations grensstreek Duitsland) which determines the maximum subsidy payable over a three year period. The original regulation did not take account of the number of service stations owned by the recipient of the aid, resulting in significant disparities. The owner of a single service station received as much aid as the owner of several service stations. It was therefore planned to amend the regulation so that the subsidies would be granted per service station.
Aid granted to undertakings by Member States is incompatible with the EC Treaty; however, exceptions are permitted under certain circumstances, and it is the Commission which determines the conditions for compatibility of that aid. The Commission considers that small amounts of aid do not affect trade between Member States. Such aid, known as “de minimis” aid, must comply with three conditions:

*     the maximum amount _ the ceiling _ must not exceed EUR 100 000
*     and that, over a period of 3 years from the date when the first aid is granted;
*     the aid must also comply with the condition of non-accumulation of aid.

Although such de minimis aid is exempted from the requirement of notification to the Commission, the Netherlands Government notified the Commission of the proposed amendmentin order to verify its legality. The Commission called upon the Netherlands Government to provide, inter alia, information on the ownership structure of the 633 service stations concerned in order to enable it to assess whether the aid could have a cumulative effect. In the light of the information provided to it, the Commission declared that part of the aid was incompatible with the common market and the functioning of the Agreement on the European Economic Area and, consequently, ordered the recovery of aid which had already been granted.

The Kingdom of the Netherlands then brought an action for partial annulment of that decision before the Court of Justice of the European Communities. In the judgment delivered today, the Court dismissed that application, in particular, with regard to the following four points: the risk of accumulation of aid, the existence of indirect aid to oil companies, the absence, or at the very least, the inadequacy, of information provided by the Netherlands, and the recovery of aid which had already granted.

First, the Court found that the scheme in question, which provides for the granting of aid per service station, enables an owner who operates more than one service station to receive as many grants of aid as he has service stations. Such a system therefore carries a risk of exceeding the ceiling on de minimis aid per applicant, an outcome prohibited by the Commission. Moreover, the Court shares the Commission's opinion that there is a risk of accumulation of aid in cases where an oil company has de facto control over the operators of service stations, who are linked to that company by exclusive purchasing and lease agreements, in as much as the grant of the disputed aid makes recourse to the “price management system” clauses in those agreements unnecessary in practice.

The aid granted to the service stations had the effect of releasing those oil companies from the obligation to bear all or part of the costs of forecourt discounts offered by their distributors.
That new State intervention thus constituted aid to the oil companies themselves since its effect was to prevent them from having to adjust their prices in order to maintain their competitive positions thereby avoiding loss of market share. That system essentially mitigated the burdens which would normally affect the budget of those companies.

The Court observed that the legality of a decision concerning state aids must be assessed in the light of the information available to the Commission when that decision was adopted. Therefore, the Netherlands, which failed to provide the Commission with the information it requested, was not in a position to contest the legality of that decision. In addition, the Court observed that the following components form part of the general duty to co-operate in good faith established by the EC Treaty:

*     provision of the necessary information to enable the Commission to assess whether the de minimis rule is applicable to matter at issue,
*     precise calculation of the amount of aid to be recovered,
*     submission to the Commission, for its assessment, of details of difficulties encountered by the Member State in implementing an order for recovery.

The Court therefore found that the Commission correctly declared that aid granted to service stations in respect of which it had not received enough information or had received only partial information did not come within the scope of the rule on de minimis aid.

The application by the Netherlands Government was therefore dismissed.    

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