2002/901/EC: Commission Decision of 19 June 2002 on State aid implemented by the Netherlands for operations by Dutch tugboats in seaports and on inland waterways in the Community (notified under document number C(2002) 2158) (Text with EEA relevance)

• Articles: 5

Article 1

Application by the Netherlands of the "fiscal facility" and "tonnage tax" to Dutch tugboat operations carried out mainly in and around Community ports and on Community inland waterways, which are not carried out mainly at sea, is incompatible with the common market.

Article 2

The Netherlands shall withdraw the relevant elements of the scheme referred to in Article 1.

Article 3

1. The Netherlands shall take all necessary measures to recover from the beneficiaries the aid referred to in Article 1 and unlawfully made available to the beneficiaries. Aid granted before 12 September 1990 shall not be recovered.

2. Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow immediate and effective execution of the decision. The aid to be recovered shall include interest from the date on which it was placed at the disposal of the beneficiaries until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.

Article 4

The Netherlands shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.

Article 5

This Decision is addressed to The Kingdom of the Netherlands.

Done at Brussels, 19 June 2002.

For the Commission

Loyola De Palacio

Vice-President

(1) OJ L 83, 27.3.1999, p. 1.

(2) OJ C 298, 24.10.2001, p. 5.

(3) Letter of 4 August 2000, registered in the DG for Energy and Transport on 9 August 2000.

Formal complaint of 4 April 2001, registered in the Secretariat of the Commission on 6 April 2001.

(4) See footnote 2.

(5) Tax and National Insurance Contribution Scheme for Shipping Act 1994.

(6) Amendment to the Income Tax Act 1964, the Corporation Tax Act 1969 and the Tax and National Insurance Credit for Shipping Act 1995 (amendment to some of the tax laws relating to seagoing shipping). Ministry of Finance, Directorate-General for Taxation, Board of Legislation for Direct Taxes, No WDB95/166, The Hague, 13 June 1995: for consideration by the Council of Ministers.

(7) Explanatory memorandum on the Amendment to the Income Tax Act 1964, the Corporate Tax Act 1969 and the Tax and National Insurance Credit for Shipping Act 1995 (amendment to some of the tax laws relating to seagoing shipping).

(8) This decision was challenged by the Netherlands before the European Court of Justice (Case C-368/01).

(9) Business secret.

(10) Not every individual interested party made all the comments summarised. Nevertheless, since there are a number of similarities, their comments have been grouped together.

(11) See footnote 9.

(12) See footnote 9.

(13) See footnote 9.

(14) Even if considered part of a package such as the "tonnage tax" or "fiscal facility", such a subsidy would still be sector specific since it affects one particular activity in the seaports sector.

(15) In the particular case under assessment, Dutch towage companies have been carrying out port towage operations in German ports (Hamburg and Bremen).

(16) OJ C 205, 5.7.1997, p. 5.

(17) Judgment of the Court of Justice in The Hague No 96/0195 of 5 June 1997, Case 23850.

(18) Judgment dated 17 February 1999 by the Supreme Court (LJN-number: AA2667, Case 33504).

(19) The ports sector or the (inland) waterway sector are distinct from the maritime transport sector in that the Community guidelines on State aid to maritime transport do not apply to them.

(20) Paragraph 1.1, second subparagraph.

(21) OJ L 378, 31.12.1986, p. 4.

(22) OJ L 364, 12.12.1992, p. 7.

(23) Regulation (EEC) No 4055/86, Article 1(4):

"For the purpose of this Regulation, the following shall be considered 'maritime transport services between Member States and between Member States and third countries' where they are normally provided for remuneration:

(a) intra-Community shipping services: the carriage of passengers or goods by sea between any port of a Member State and any port or off shore installation of another Member State;

(b) third country-traffic: the carriage of passengers or goods by sea between the ports of a Member State and ports or offshore installations of a third country."

Regulation (EEC) No 3577/92, Article 2:

"For the purpose of this Regulation 'maritime transport services within a Member State (maritime cabotage)' shall mean services normally provided for remuneration and shall in particular include:

(a) mainland cabotage: the carriage of passengers or goods by sea between ports situated on the mainland or the main territory of one and the same Member State without calls at islands;

(b) off-shore supply services: the carriage of passengers or goods by sea between any port in a Member State and installations of structures situated on the continental shelf of that Member State;

(c) island cabotage: the carriage of passengers or goods by sea between:

- ports situated on the mainland and on one or more of the islands of one and the same Member State,

- ports situated on the islands of one and the same Member State."

(24) Letter to the United Kingdom of 2 August 2000 (No SG(2000) D/105768).

(25) Letter to Belgium of 27 July 2000 (No SG(2000) D/105460).