(3) lists aid which may be compatible with the common market. Compatibility must be determined in the context of the Community as a whole and not of a single Member State.
In order to ensure the proper functioning of the common market and having regard to the principles embodied in Article 3 f of the Treaty, the exceptions provided for in Article 92 (3) must be construed narrowly when any aid scheme or any 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 recipient towards patterns of behaviour that would serve one of the objectives of the said exceptions.
Applying the exceptions to cases which do not contribute to such objectives or where aid is not necessary for those purposes would amount to conferring advantages on the industries or firms of certain Member States, whose financial position would be artificially strengthened, and to affecting trade between Member States and distorting competition without any justification based on the common interest referred to in Article 92 (3).
With regard to the applicability of the exceptions provided for in Article 92 (3) (a) and (c) for aid that promotes the development of certain regions, the Brussels region in which the aid in question was granted does not suffer from an abnormally low standard of living or from serious underemployment within the meaning of the (a) exception; moreover it does not fulfil the requisite conditions for the (c) exception for aid granted on regional grounds (10).
As to the exceptions provided for in Article 92 (3) (b), the facts of the case can provide no grounds whatsoever for considering that those awards were intended to promote a project of common European interest or to remedy a serious disturbance in the Belgian economy. Furthermore the Belgian Government has not presented any such arguments to justify the compatibility of the aid in question.
As regards the exceptions provided for in Article 92 (3) (c) for aid to facilitate the development of certain economic activities, where such aid does not affect trading conditions to an extent contrary to the common interest, it should be noted that part of the aid here in question, in particular that for advertising campaigns and market surveys, falls under the category of operating aid as this expenditure is a typical general operating cost that a company must bear in its normal activities; furthermore, in the case at issue, this expenditure has not proved to be linked as an essential requirement for the realization of any particular investment project by Siemens SA that could qualify from the abovementioned exception. On the other hand, the remaining and greatest proportion of the aid in question, namely that towards expenditure on equipment leased to clients, is also to be considered as equivalent to operating aid to Siemens SA. As previously explained, the aid to equipment leased to clients in practice constitutes a continued assistance to the commercial activities of Siemens SA in the market of leased products, which has given this company an unfair advantage for the marketing of its products over its competitors.
In view of its direct and ongoing adverse distortive effect on sectoral competition conditions, it is a well-known policy of the Commission to oppose operating aid in normal circumstances, even if this aid would serve one of the objectives of the other exceptions of Article 92 (3). As previously analyzed, the aid in question cannot even be considered as contributing to the attainment of those objectives.
To complete the argument, it should finally be noted that even if this aid had been necessary to facilitate the access of SMEs to new technologies, the Commission, on the basis of the general principle that aid must be granted under those instruments producing the least potential distortive effects on competition, would have never allowed the aid to be granted through the payment of money to a particular equipment supplier, with the resulting abovementioned inadmissible effects on competition, but through the more neutral and adequate way of a scheme of direct aid to SMEs.
In conclusion, the aid in the form of subsidies of Bfr 11 814 000 towards expenditure by Siemens SA of Bfr 96 600 000 in advertising campaigns and market surveys, and the aid in the form of subsidies of Bfr 244 631 000 towards expenditure by Siemens SA of Bfr 1 849 294 000 on equipment leased to clients, was illegally granted by the Government of the Region of Brussels and does not meet any of the conditions which must be fulfilled for one of the exceptions of Article 92 (2) and (3) to apply. Accordingly, it is incompatible with the common market.
V
In case of aid which is incompatible with the common market, the Commission, making use of a possibility given to it by the Court of Justice in its judgment of 12 July 1973 in Case 70/72, Conversion of mining companies in Germany (11), confirmed in the judgment of 24 February 1987 in Case 310/85, Deufil (12), can require Member States to recover from recipients aid illegally received. The Court has moreover added that the recovery of an aid is the logical consequence of its incompatibility with the common market.
Consequently, Siemens SA must reimburse the aid which it has illegally received.
Reimbursement must be made in accordance with the procedures and provisions of Belgian law, in particular those relating to interest on arrears on State liabilities. The interest will be computed from the date on which the illegal aid was received. This is necessary in order to restore the status quo by removing all the financial benefit which the recipient of the aid has improperly enjoyed since the date on which the illegal aid was received (see judgment of 21 March 1990 in Case C-142/87, Tubemeuse (13)),
HAS ADOPTED THIS DECISION:
