State Aid – Financing of Promotional Activities by Trade Chambers

Dutch law provides for the establishment of industry associations and entrusts to them a certain scope of internal autonomy. The case concerns a Dutch chamber of traders active on the market of optic products which, by virtue of its internal bye-laws, imposed specific charges on its members. These charges were used solely to finance advertising activity designed to promote optical products for the benefit of the Chamber’ members.

The dispute arose between the chamber and three of its members, private corporations active in the optic industry, which contested the levy of the charge by the chamber. The plaintiffs argued that the charge qualified as state aid within the meaning of applicable Community law. Since the alleged state aid had not been notified to the Commission, as is normally required under Community law, the plaintiff argued that the decision of the chamber to levy the charge was invalid and that the charges already collected were subject to reimbursement.

The Court has ruled in favour of the Chamber. It noted that state aid is defined as any support granted directly or indirectly from public funds, which may be attributed to the activity of public authorities.

That definition does not seem, in the Court’s opinion, to cover the charge collected by the chamber. The revenues so acquired were used only in the interest of the members, which benefited from the promotional activities. Thus, the benefits enjoyed by the members were not related to any allocation or transfer of public funds since any advantages which the members might have obtained were financed by means of the charge collected from them.

The Court also set aside, as irrelevant to this case, the argument that both the activities and authority of the Chamber, including the right to impose charges, were based on the provisions of Dutch public laws on entrepreneurship. The Court also pointed out that the decision of the chamber to impose the charge was taken at the request of some of its members. As such, the charge was not a part of the general policy of the Dutch public authorities and could not have been attributed to them.