Article 2
This Decision is addressed to the Kingdom of the Netherlands. Done at Brussels, 30 October 2001. For the Commission Mario Monti Member of the Commission (1) OJ C 111, 12.4.2001, p. 2. (2) Letter D/17343 of 28 December 1995 concerning State aid NN 93/95 and letter D/7090 of 17 August 1998 concerning State aid N 656/97. In paragraph 15 of its guide to procedures in State aid cases, the Commission wrote that notification is required whenever there is a sufficient likelihood in the light of the case law of the Court of Justice and the Commission's practice that a measure involves State aid (Competition law in the European Communities, Volume IIA, Rules applicable to State aid, European Commission 1998). Footnote 8 to this paragraph adds that the Commission is willing to give informal advice on whether notification is required. (3) See footnote 1. (4) Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles, OJ L 269, 21.10.2000, p. 34. (5) Lower targets may be laid down for vehicles produced before 1 January 1980. (6) RAI on behalf of the car producers and importers, BOVAG on behalf of the garage industry, FOCWA for the car manufacturers, STIBA for the car dismantling industry and SVN (now MRF) for the shredder industry. (7) The SAR is managed by four directors. The industry organisations BOVAG, FOCWA, RAI and STIBA have the right to appoint one director each. The SAR is advised by an Advisory Committee, whose members are representatives of interested government bodies, environmental and/or consumer organisations. They are appointed by the board of the SAR. (8) In 7 % of cases, the charge is paid by a private person. (9) Article 15(36) of the Law on Environmental Management gives the Minister for Housing, Planning and the Environment the power to declare an agreement generally binding. (10) Article 15(38) of the Law on Environmental Management. (11) See footnote 1. (12) Both of these remarks negate the polluter-pays principle, which forms the basis of the ARN system. (13) Case C-379/98, PreussenElektra AG v Schleswag AG, judgment of the Court of 13 March 2001, and opinion of Mr Advocate General Jacobs delivered on 26 October 2001 [2001] ECR I-2099. (14) ARN does not take these costs into account for establishing premiums. However, if a tender procedure were used, these companies would certainly take these costs into consideration, because they are necessary in order to have a constant flow of car wrecks, which allows them to avoid idle capacity. For the six companies, transport costs vary between NLG 12 (EUR 5,4) and NLG 29 (EUR 13,2) (15) This reference cost price is based on the assumption of optimal management and does not take into account the heaviness of the work and the increasing complexity of dismantling the more recent car wrecks. It is also based on the assumption that a large part of the costs is borne by other activities. This has become more difficult, however, as metal shredder prices have decreased significantly since 1998. (16) OJ L 30, 6.2.1993, p. 1. (17) Case C-55/93 Van Schaik [1994] ECR I-4837. (18) See footnote 13, paragraphs 59 to 61 of the Judgment. (19) For example, in Case 78/76 Steinike & Weinlig v Germany [1977] ECR 595. In that Judgment, the Court held: "(21) The prohibition contained in Article 92(1) covers all aid granted by a Member State or through State resources without it being necessary to make a distinction whether the aid is granted directly by the State or by public or private bodies established or appointed by it to administer the aid. In applying Article 92 regard must primarily be had to the effects of the aid on the undertakings or producers favoured and not the status of the institutions entrusted with the distribution and administration of the aid. (22) A measure adopted by the public authority and favouring certain undertakings or products does not lose the character of a gratuitous advantage by the fact that it is wholly or partially financed by contributions imposed by the public authority and levied on the undertakings concerned." (20) "This measure" refers to the first subparagraph of Article 5(4) concerning the delivery of the vehicle to an authorised treatment facility without any cost for the last holder and/or owner as a result of the vehicle's having no or a negative market failure. This implies that any commercial deficit resulting from dismantling and recycling cannot be passed on to the last owner or holder of the car. The second subparagraph of Article 5(4) relates to the costs of these commercial deficits.