89/659/EEC: Commission Decision of 3 May 1989 relating to Ministerial Decision No E 3789/128 of the Greek Government establishing a special single tax on undertakings (Only the Greek text is authentic)
1. The aid - with the exception of aid granted for production of, or trade in, the products listed in Annex II to the EEC Treaty to which the provisions of Article 93 (1) and (3) of the EEC Treaty are alone applicable - granted to exporting undertakings in the form of exemption from a special single tax, established by Ministerial Decision No E 3789/128 of 15 March 1988, on the share of profits corresponding to export earnings is illegal as it was granted in breach of Article 93 (3) of the Treaty; the aid is also incompatible with the common market within the meaning of Article 92 (1) of the EEC Treaty.
2. The special single tax scheme must be modified without delay and the incompatible aid referred to in this paragraph 1 abolished.
The Greek Government is hereby required to recover from the recipient undertakings the aid referred to in Article 1 granted illegally to them under Ministerial Decision No E 3789/128.
Recovery shall take the form of payment of the part of the tax which was not levied.
The Greek Government shall inform the Commission, within two month of the notification of this Decision, of the measures it has taken to comply therewith and shall forward a detailed report on the amount of the aid and the undertakings concerned by repayments.
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 3 May 1989.
For the Commission
Sir Leon BRITTAN
Vice-President
(1) OJ No C 336, 31. 12. 1988, p. 3.(2) [1985] ECR, p. 809.
(3) OJ No 30, 20. 4. 1962, p. 993/62.(4) OJ No L 373, 31. 12. 1985, p. 9.
(5) OJ No L 357, 18. 12. 1986, p. 28.(6) [1973] ECR, p. 813.
(7) [1987] ECR, p. 901.
(1) of the Treaty provides that aid meeting the criteria laid down therein is in primciple incompatible with the common market.
The exceptions to this principle provided for in paragraph 2 of that Article are applicable in this case because of the nature of the aid measures, which are not directed towards attainment of such objectives.
(3) of the Treaty lists aid which may be compatible with the common market. Compatibility with the Treaty must be determined in the context of the Community as a whole and not in that of a single Member State. In order to ensure the proper functioning of the common market, and having regard to the principle embodied in Article 3 (f) of the Treaty, the exceptions provided for in Article 92 (1) of the Treaty must be construed narrowly when any aid scheme or any individual aid award is scrutinized. In particular, they may be invoked only when the Commission is satisfied that, without the aid, market forces alone would be insufficient to
guide the recipients towards patterns of behaviour that would serve one of the objectives of the said exceptions.
With regard to the exceptions provided for in Article 92 (3) (a) for aid that promotes the economic development of regions where the standard of living is abnormally low or where there is serious under-employment, Greece may be regarded as meeting these definitions. The Commission, however, approves the award of such aid on condition that it is for new investment, or major expansion or conversion operations requiring massive investment owning to the considerable cost involved.
The aid measure in question cannot be considered to satisfy the conditions for exemption.
As to the first exception provided for in Article 93 (3) (b), it is obvious that the measure in question is not intended to promote the execution of an important project of common European interest.
As regards the second exception provided for in Article 92 (3) (b) which refers to aid intended to remedy a serious disturbance in the economy of a Member State, it should be noted that the Commission has in the past, by Decision 85/594/EEC (4) and 86/614/EEC (5), authorized the Greek authorities, and will continue to do so until 1990, to adopt specific aid measures to offset the very serious balance of payments difficulties and exchange rate pressures. It therefore authorized the award of certain export subsidies for a specific period, pursuant to Article 108 of the Treaty. A Community loan of ECU 1 750 million was also granted to Greece for that purpose.
As the measure in question was not taken within the framework of the above authorizations, it cannot qualify for exemption under the second part of Article 92 (3) (b) of the Treaty.
Lastly, as regards the exception provided for in Article 92 (3) (c), the Commission must first point out that aid for exports to other Member States are, by their very nature, in breach of the fundamental principles of a unified market.
In reaffirming its will to achieve a single market by 1992, the Commission considers that such aids, regardless of their intensity, form, motivation or purpose are liable to jeopardize the objectives of that market to which it attaches the greatest importance.
The Greek measure is not a regional aid and cannot be regarded as an aid to facilitate the development of certain regions within the meaning of Article 92 (3) (c).
It is clear that as the purpose of the Greek aid is general and not specifically directed towards the development of certain activities, and as it has a direct effect on the selling prices of the recipients' products, it does not qualify for the exception in Article 92 (3) (c) for aid to facilitate the development of certains activities as it manifestly adversely affects trade to an extent contrary to the common interest.
The Commission, in accordance with the case law of the Court of Justice, notably its judgments of 12 July 1973 in Case 70/72 (6) and of 24 February 1987 in Case 310/85 (7), can require that incompatible aid be recovered.
In the case in question, the Greek Government should be required to modify the scheme for a special single tax on undertakings' profits establishing by Ministerial Decision No E 3789/128 of 15 March 1988 in order to abolish the tax exemption for the share of profits relating to export earnings, and to recover from firms having already benefited from the exemption the corresponding amount of tax since 15 March 1988,
HAS ADOPTED THIS DECISION:
Source: EUR-Lex (Publications Office of the EU), Β© European Union, reuse permitted under Commission Decision 2011/833/EU.
