In Case T-237/99 R,
BP Nederland vof, established in Rotterdam (Netherlands),
BP Direct vof, established in Alphen aan den Rijn (Netherlands),
Actomat BV, established in Amsterdam (Netherlands),
represented by M. van Empel and M. Smeets, of the Amsterdam Bar, with an address for service in Luxembourg at the chambers of Harles, Arendt and Medernach, 8-10 Rue Mathias Hardt,
applicants,
supported by
Kingdom of the Netherlands, represented by M.A. Fierstra, deputy legal adviser to the Ministry of Foreign Affairs, acting as Agent, 67 Bezuidenhoutseweg, The Hague (Netherlands),
intervener,
v
Commission of the European Communities, represented by G. Rozet, Legal Adviser, and H.M.H. Speyart, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gomez de la Cruz, also of that service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for partial suspension of the operation of Commission Decision 1999/705/EC of 20 July 1999 on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border (OJ 1999 L 280, p. 87),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal framework
1 Article 87(1) EC provides for the prohibition of State aid which is incompatible with the common market. Moreover, under Article 88(3) EC, plans to grant or alter existing State aid must be notified to the Commission which examines them for their compatibility with the common market.
2 According to the terms of Commission Notice 96/C 68/06 on the de minimis rule for State aid (OJ 1996 C 68, p. 9, hereinafter the de minimis Notice) the Commission imposed a ceiling on the amount of aid below which Article 87(1) EC may be considered inapplicable and the aid in question may be considered not subject to prior notification to the Commission under Article 88(3) EC. The maximum amount of de minimis aid is EUR 100 000 over a period of three years beginning with the date of the first payment. This amount is subject to an anti-cumulation rule which covers all public assistance granted to a single beneficiary during this period under the heading de minimis.
Facts and procedure
3 The excise duties on petrol, diesel and liquid petroleum gas levied by the Netherlands authorities were increased as of 1 July 1997.
4 In order to respond as fully as possible to the concerns of operators of service stations located close to the German border following this increase, on 21 July 1997 the Netherlands Minister for Finance adopted a temporary aid scheme for service stations located near the German border (Tijdeliike regeling subsidie tankstations grenssttreek Duitsland (Nederlandse Staatscourant 1997, No 138), hereinafter the temporary regulation), based on the Law of 20 December 1996 amending some tax laws (Wet van 20 December 1996 tot wijziging van enkele belastingwetten c.a. (Staatsblad 1996, No 654). The regulation came into force on 1 July 1997 with retroactive effect.
5 The temporary regulation provides for the payment of a subsidy to 633 Dutch service stations located near the German border (hereinafter the border service stations), calculated according to the quantity of light oil supplied and the distance between the service station receiving the supply and the nearest crossing on the German border. Thus, according to the wording of the ministerial decree of 15 December 1997 (Staatscourant 1997 No 241) amending the temporary regulation as from 1 July 1997, service stations located within 10 kilometres of the border crossing received NLG 100 (approximately EUR 45) per 1 000 litres, while those located between 10 and 20 kilometres collected NLG 50 (approximately EUR 23) for the same quantity. The aid scheme was approved for three years, from 1 July 1997 to 1 July 2000, but with a ceiling for its entire duration of the equivalent in Dutch guilders of EUR 100 000 per service station. The total amount of aid at issue would amount to about NLG 126 million (approximately EUR 52.7 million).
6 By letter of 14 August 1997, registered as received on 18 August, the Kingdom of the Netherlands notified the Commission of its intention to grant this aid to the border service stations. According to the Netherlands authorities, three categories of service station should be distinguished: (a) the owner/operator, so-called Do/Do (dealer owned/dealer operated) where the dealer is also the owner of the service station, (b) the operator/renter, so-called Co/Do (company owned/dealer operated) where the dealer rents the service station and is linked to the oil company by exclusive purchasing agreements in accordance with Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5), (c) the operator/employee, so-called Co/Co (company owned/company operated) where the service station is operated by employees or subsidiaries of the oil company. The Netherlands authorities allege that the aid measure before the Court complied with the de minimis rule set out in Communication 96/C 68/06 because a ceiling of NLG 100 000 per service station was applied.
7 Following the procedure provided for by Article 88 EC, the Commission considered whether the anti-cumulation rule set out in the de minimis Notice had been complied with. In the view of the Commission, a single dealer may in effect appear several times on the list of beneficiaries or collect aid several times by dividing his undertaking into several legal entities. Moreover, the ceiling as applied did not take account of the actual beneficiary of the aid where the exclusive purchasing agreements included a price management system (PMS).
8 As a result, the Commission adopted Decision 1999/705/EC of 20 July 1999 on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border (OJ 1999 L 280, p. 87, hereinafter the Decision) in which the aid paid out to most of the border service stations was declared incompatible with the common market.
9 The Commission confirms, first, in Article 1 of the Decision, that the de minimis rule applies to 183 of the border service stations. However, in Article 2 of the Decision, it concludes that the aid paid out to 450 other service stations is incompatible with the common market. The latter group, among which the Commission lists 250 service stations regarding which the Netherlands authorities provided insufficient information, are listed and identified as applicants under the temporary aid scheme in the Annex to the Decision.
10 As regards the 250 service stations for which the Commission received no information or insufficient information, it states in recital 65 of the Decision that it cannot rule out the fact that the aid has an appreciable effect on trade and competition between Member States within the meaning of the Commission notice on the de minimis rule. Therefore, the aid paid out to them was declared incompatible with the common market in Article 2(a) of the Decision.
11 As for the 200 service stations that benefited from cumulated aid, the Commission, in Article 2(b) and 2(c) of the Decision, distinguished between the Co/Co and the Do/Do service stations.
12 As regards the Co/Co category, according to Article 2(b) of the Decision, the cumulation derives from the fact that the same oil company owns and operates several service stations. These are the pure Co/Co's. The Commission includes in this category dealers who, although not strictly falling into the category of Co/Co service stations, applied for more than one grant of aid and who consequently appear several times on the list of aid beneficiaries. The Commission believes that these dealers may be classified as de facto Co/Co service stations.
13 According to the Commission, a total of 49 service stations fall into the category of pure Co/Co or the de facto Co/Co.
14 As regards the Do/Do type of service station, the Commission states in recital 83 of the Decision that there is a risk of cumulation of aid at the level of the oil company wherever a PMS clause is applicable, as in 71 cases. According to Article 2(c) of the Decision, the aid paid out in these cases is therefore incompatible.
15 The Commission points out, in recitals 84 and 85 of the Decision, that the objective of PMS clauses in the framework of exclusive purchasing agreements is to protect the dealer's turnover against competing petrol outlets in the immediate vicinity of his service station. Such clauses often stipulate that the oil company will bear part of the cost of the forecourt discount granted by the dealer, in so far as market conditions make a temporary or long-term adjustment of such discounts desirable or necessary. They require the supplier, therefore, to compensate the dealer, at least in part, for losses which the latter has incurred as a result of extraordinary market conditions, particularly those deriving from legal obligations such as an increase in excise duties. By granting the aid in question to the dealer, according to the Commission, the Netherlands Government in fact assumes all or part of the supplier's obligations towards dealers pursuant to the PMS clause.
16 As regards service stations in the Co/Do category, the Commission points out, in recital 86 of the Decision, that there is a risk of cumulation of aid at the level of the oil company wherever an exclusive purchasing agreement includes a PMS clause or guarantees a certain level of income to the dealers. In Article 2(d) of the Decision, the aid in question is declared incompatible for 80 service stations in this situation.
17 In Article 2, final paragraph, of the Decision, the Commission concludes that in the case of aid paid out to service stations in categories Do/Do and Co/Do: [t]he actual recipients in categories (c) and (d) are the oil companies with which these service stations concluded exclusive purchasing agreements, and that [t]he annexed list indicates the oil company concerned in each individual case.
18 Article 3 of the Decision requires the Kingdom of the Netherlands to take all necessary measures in accordance with the procedures of national law to recover from the service stations concerned the aid paid out to them, including interest from the date on which it was made available to the recipients until the date of its recovery. Under Article 4 of the Decision, the Kingdom of the Netherlands is to inform the Commission of the measures taken to comply with the Decision.
19 The applicants, three companies established under Dutch law, are active in the Dutch market for the supply of light oil to service stations.
20 On 11 October 1999, the Kingdom of the Netherlands brought an action before the Court of Justice pursuant to the second paragraph of Article 230 EC, registered as Case C-382/99, seeking annulment of Articles 2 and 3 of the Decision.
21 By application lodged at the Registry of the Court of First Instance on 15 October 1999 as Case T-237/99, the applicants brought an action for annulment of the Decision under the fourth paragraph of Article 230 EC; the Court of First Instance also has another 73 actions with the same subject-matter pending before it.
22 By order of 9 March 2000, pursuant to the third paragraph of Article 47 of the EC Statute of the Court of Justice, the President of the First Chamber (Extended Composition) of the Court of First Instance ordered the suspension of the proceedings in Case T-237/99 and in the other applications before it, until the Court had ruled in Case C-382/99.
23 In the meantime the Kingdom of the Netherlands commenced the procedure to recover the relevant aid from the service stations covered by Article 2(a) of the Decision. Thus, on 15 August 2000, Actomat BV was notified of a decision to withdraw and recover (intrekkings en terugvorderingsbesluit) aid paid out to service stations owned by it.
24 By a document lodged at the Court Registry on 26 September 2000, the applicants made an application for suspension of the operation of the Decision until the Court had ruled on the substance of their action.
25 On 6 October 2000, the Commission submitted its observations on the application for interim relief.
26 On 19 October 2000, the Kingdom of the Netherlands applied for leave to intervene in the proceedings for interim relief in support of the form of order sought by the applicants. By decision of the same date the President of the Court asked the parties to submit their observations regarding that application.
27 At the hearing of 23 October 2000, leave to intervene was granted by the President of the Court and the oral argument of the parties, including the intervening party, was heard.
Law
28 Before a ruling is given on this application for interim relief, its subject-matter must be defined clearly.
29 The applicants have applied for suspension of the operation of the Decision until the Court has delivered judgment on the main application.
30 At the hearing, the applicants explained that they had an interest in obtaining an annulment of Article 3 of the Decision to the extent that it affected them. For instance, it was pointed out that all three are members of the BP Group in the Netherlands, either as subsidiaries of BP Nederland BV or as a joint venture of this company and Mobil Oil BV. As for the service stations operating under the BP trade mark in the Netherlands, it was also explained that Actomat is the proprietor of Co/Co type of service stations, while BP Nederland and BP Direct vof are the suppliers, respectively, of Do/Do and Co/Do types of service stations.
31 Consequently, they claimed that their application for interim relief should be understood to be seeking suspension of the operation of the Decision only in so far as it applies to the recovery of the aid paid out to the service stations which belong to them, or with which they have links through exclusive purchasing contracts including a PMS.
32 In the light of this explanation, the Commission stated that it no longer disputed the applicants' interest in requesting such a suspension.
33 Under the provisions of Article 242 EC and Article 243 EC read in conjuction, and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) the Court of First Instance may, if it considers that the circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
34 Article 104(2) of the Rules of Procedure provides that an application for interim relief is to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for suspension of operation must be dismissed if either one of the conditions is not fulfilled (orders of the President of the Court of Justice of 14 October 1996 in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30 and of the President of the Court of First Instance of 28 June 2000 in Case T-74/00 R Artegodan v Commission [2000] ECR II-2583, paragraph 21).
The prima facie case
35 The applicants refer to the various pleas relied on as to the substance of the action which, they submit, establish that the conditions for a prima facie case are met. These are pleas in law alleging, first, a breach of the Treaty by the Commission in the Decision in relying on the notion of de facto or actual recipients of the aid to conclude that such aid is prohibited on the basis of speculation about the risk of aid cumulation by oil companies and, second, a manifest error of assessment of the facts, misuse of powers, breach of the principles of legal certainty and legitimate expectations, and breach of the obligation to state the reasons upon which a decision is based.
36 Although the Commission contends that these pleas are unfounded, it does not dispute that they are of a serious nature.
37 As the pleas relied on by the applicants, and particularly those alleging breach of Community law by the Commission in relying on the notion of actual aid beneficiaries and its argument about the risk of aid cumulation by the oil companies, do not at first sight appear to be entirely without foundation, and given the defendant's position in this regard, it must be held that these pleas satisfy the condition of a prima facie case.
Urgency
Arguments of the parties
38 The applicants submit that recovery of the aid is liable to give rise to numerous legal proceedings against them by the Netherlands authorities as well as by the service stations, the costs of which would not be recoverable even if the Decision were ultimately annulled. They would also incur loss because they would not be able to recover from each border service station operating the BP banner, the aid ordered to be repaid because some of these stations would no longer be in possession of the aid received or would be bankrupt. Furthermore, their commercial relations with these service stations would break down.
39 It is also possible that, in order to ensure that the aid reimbursed to the Netherlands authorities is paid back again in the event that the Decision is annulled, there would be no shortage of disputes at national level in defence against such reimbursement.
40 At the hearing, the applicants stressed that, in the absence of the suspension of the operation of the Decision and in the event that the Decision is annulled, there is no legal basis enabling them to require the Kingdom of the Netherlands to repay to them the recovered aid. In any event, even if they were to succeed in obtaining a further grant, the Kingdom of the Netherlands would not be required to pay the interest and other costs which they would have to incur in connection with their defence against the proceedings for reimbursement initiated by that Member State.
41 The applicants, supported by the Kingdom of the Netherlands, stressed at the hearing the very specific nature of the aid in question and particularly the fact that the Commission did not limit its assessment to the relations between the Netherlands authorities and the direct recipients of the aid, that is to say, the border service stations, but, rather, requires those authorities to recover the aid from third companies. This constitutes an infringement of the principle of legal certainty. This unique aspect of the Decision requires a finely tuned assessment of the urgency of the present case.
42 The Kingdom of the Netherlands argues that by basing the Decision solely on the legal analysis of the obligations arising from the contractual links between the oil companies and the service stations, the Commission failed to recognise the considerable difficulties posed by the calculation of the amounts to be reimbursed by each alleged de facto beneficiary of the aid and their reimbursement.
43 According to the applicants, supported by the Kingdom of the Netherlands, it follows that the condition of urgency is satisfied in the present case.
44 The Commission contends that the applicants have not established that they are liable to suffer serious and irreparable damage if the suspension of operation applied for is not granted. It is unlikely, according to the defendant, that numerous proceedings to recover the aid would be brought against the applicants, since the Netherlands authorities will probably serve only one, or a limited number of, decision(s) to withdraw and recover aid paid out to service stations operating under the BP trade mark. In addition, in the event that the Decision were annulled, a new grant of aid by the Netherlands authorities would be made to the oil companies from which it had been recovered; they would thus not be obliged to recover the aid from each service station.
45 Moreover, the applicants have neither alleged nor proved exceptional circumstances. Finally, reimbursement of the aid in question could not bring about the bankruptcy of the BP group.
46 In its oral observations, the Commission stressed the theoretical and purely financial nature of the loss alleged by the applicants.
47 The Commission concludes that the condition of urgency is not satisfied.
Findings of the judge hearing the application for interim relief
48 It is settled case-law that the urgency of an application for interim relief must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure (order of the President of the Court of Justice of 18 October 1991 in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 18).
49 It is for the party who pleads serious and irreparable damage to prove its existence (order of President of the Court of Justice of 12 October 2000 in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14). It need not be established with absolute certainty that the harm is imminent, but it is sufficient that it should be foreseeable, particularly when it depends on the occurrence of a number of factors (orders of the President of the Court of Justice of 19 July 1999 in Case C-149/95 P(R) Commission v Atlantic Container Line [1995] ECR I-2165, paragraph 38, and of the President of the Court of First Instance of 15 July 1998 in Case T-73/98 R Prayron-Rupel v Commission [1998] ECR II-2769, paragraph 38).
50 Damage of a pecuniary nature cannot be regarded as irreparable, otherwise than in exceptional circumstances, since as a general rule pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage (order in Abertal and Others v Commission, cited above, paragraph 24, and order of the President of the Court of First Instance of 20 July 2000 in Case T-169/00 R Esedra v Commission [2000] ECR II-2951, paragraph 44). It should also be noted that consideration may be given, for the purposes of assessing the economic circumstances of the party concerned, to the characteristics of the group of which, by virtue of its shareholding structure, it forms part (order of the President of the Court of First Instance of 30 June 1999 in Case T-13/99 R Pfizer Animal Health v Council [1999] ECR II-1961, paragraph 155).
51 The present application seeks the suspension of the operation of the Decision in so far as it orders the recovery of aid paid out to border service stations which belong to the applicants or which are contractually linked to them.
52 In this regard, it must be observed that an adverse effect on the rights of the persons considered to be the recipients of State aid which is incompatible with the common market forms an integral part of any Commission decision requiring the recovery of such aid and cannot be regarded as constituting in itself serious and irreparable damage, whether or not a specific assessment is made of the seriousness and irreparability of the precise prejudice alleged in each case considered (order in Greece v Commission, cited above, paragraph 21).
53 In the present case, it is sufficient to observe that, with the exception of the alleged breakdown in commercial relations between the applicants and the service stations operating under the BP trade mark which the recovery of the aid could trigger, the damage alleged by the applicants is of a purely financial nature. They plead, in fact, four types of financial damage.
54 First, according to the applicants, there is a risk that they will incur substantial legal fees if they are forced to defend themselves against numerous legal actions brought by the Netherlands authorities and the service stations. Second, if the law of the Netherlands requires them to be a party to legal proceedings in order to ensure that they obtain a fresh grant of the aid which was recovered, this would give rise to yet more costs for the applicants. Third, the Kingdom of the Netherlands might choose not to reimburse the recovered aid if the Decision is annulled. In that event, the applicants would be obliged to bring legal proceedings against the Netherlands Government in order to obtain the reimbursement of the recovered aid. Fourth, even if the recovered aid were reimbursed to them, this would not necessarily make good the negative impact on their cash flow.
55 It must be observed at the outset, that the evidence put forward by the applicants is far from sufficient to establish that the occurrence of all these losses, which depends on a combination of factors, is foreseeable with a sufficient degree of probability.
56 In the present case, the most specific loss which the applicants face is the possibility that the Kingdom of the Netherlands, despite the annulment of the Decision in the main proceedings, might not reimburse the recovered aid. The mere possibility that such a decision might be taken by the Netherlands authorities, which appears unlikely given, in particular, the action it has brought before the Court in Case C-382/99, does not constitute the urgency required under Article 104(2) of the Rules of Procedure.
57 As regards the costs of the proceedings, suffice if to note that there is currently only one decision to withdraw and recover aid, and this concerns only Actomat, which is the proprietor of Co/Co service stations operated under the BP trade mark under Article 2(b) of the Decision, and thus is a direct beneficiary of the aid paid out to it. The costs which BP Nederland and BP Direct would incur in connection with the defence of their interests in the allegedly numerous legal actions which would be triggered if a plethora of decisions were taken by the Netherlands authorities regarding the recovery of the aid paid out to the Co/Do and Do/Do service stations operating under the BP trade mark remain hypothetical, at least until those authorities bring an action for recovery against BP Nederland and BP Direct. This last conclusion applies a fortiori to the costs which the applicants may have to bear in the event that the Kingdom of the Netherlands chooses not to reimburse the recovered aid following the annulment of the Decision.
58 In any event, the damage alleged by the applicants cannot be considered serious and irreparable.
59 First, if the applicants do incur such costs and do not receive compensation for the damage to their cash flow there is nothing to prevent them from bringing an action for damages against the Commission under Article 235 EC and Article 288 EC.
60 Second, there is no bar in Community law preventing the Netherlands Government from paying out the aid in question again, in the event that the Decision is declared void as to its substance. Furthermore, even if the Government did not want to make a new payment, or made the payment without taking into account the loss of funds which the applicants incurred, they have not furnished evidence that the financial loss resulting from such a situation could pose a threat to their existence.
61 It must also be held that there are no other exceptional circumstances which might justify the suspension of the operation applied for in the present case.
62 The argument based on the alleged legal uncertainty resulting from the complex and very specific nature of the Decision, in that it does not order the reimbursement of the aid by the direct beneficiaries but by the de facto beneficiaries which, according to the applicants, would justify the suspension of the operation at least with regard to BP Nederland and BP Direct, cannot be upheld.
63 Indeed, the complexity of the Decision and its specific nature are explained by the structure of the relevant market and, in particular, by the diversity of relations which exist between the oil companies and the service stations. This complexity, therefore, cannot be imputed to the Decision itself.
64 In any event, although if it is true that the argument on which the Commission bases its Decision, regarding the need to ensure that aid is recovered from the actual beneficiaries, has aspects which have no precedent, it is not for the judge hearing an application for interim relief to rule as to whether it is well-founded or not. It follows that this aspect of the Decision is not sufficient to constitute an exceptional circumstance which would justify a finely tuned assessment of urgency in the present case.
65 Furthermore, the legal uncertainty invoked by the applicants, in particular as regards the Do/Co and Co/Do types of service station, is not such as to give rise to a high risk that their very existence is endangered. While it is true that the amounts to be recovered have yet to be calculated, and that BP Nederland and BP Direct may, therefore, have to face numerous actions regarding applications for reimbursement, no evidence has been put before the judge hearing the application for interim relief that such damage of a purely financial nature would be serious and irreparable.
66 Finally, regarding the alleged breakdown of commercial relations between the applicants and the Co/Do and Do/Do service stations operating under the BP trade mark which would be caused by recovery of the aid, it must be held that such damage is as hypothetical as it is imprecise at this stage.
67 It follows from the foregoing that the applicants have failed to establish that if the suspension of operation applied for is not granted they would suffer serious and irreparable damage.
68 Consequently, the application for partial suspension of the operation of the Decision must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim relief is dismissed.
2. The costs are reserved.
