HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 274/36
EN
Official Journal of the European Union
19.10.2011
COMMISSION DECISION
of 27 July 2011
concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE)
in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04))
(notified under document C(2011) 5457)
(Only the French and Dutch texts are authentic)
(2011/678/EU)
THE EUROPEAN COMMISSION,
(6) Additional
information
was
provided
by
the
Belgian
authorities by letters of 16 September 2004 and
22 February 2007, registered on 20 September 2004
Having regard to the Treaty on the Functioning of the European
and 22 February 2007 respectively.
Union, and in particular the first subparagraph of Article 108(2)
thereof ( 1 ),
(7) By
letter
of
26
November
2008
the
Commission
Having invited interested parties to submit their comments in
informed Belgium of its decision to initiate the
accordance with that Article ( 2 ),
procedure provided for in Article 108(2) of the TFEU
in respect of that measure. The decision was published
in the Official Journal of the European Union ( 3 ). The
Whereas:
Commission invited interested parties to submit their
comments on the measure in question.
1. PROCEDURE
(1) Following
complaints
received
in
January
and
February (8) By
letter
of
19
December
2008,
registered
on
2004, the Commission undertook a preliminary exam
26 December 2008, Belgium asked for an extension to
ination of the aid granted by Belgium to cover the costs
the deadline for reply. That extension was granted by
of screening tests for BSE in bovine animals.
letter of 13 January 2009. Belgium provided comments
by letter of 25 February 2009, registered on 6 March
2009.
(2) Following
those
complaints,
the
Commission
sent
a
letter
to the Belgian authorities on 27 January 2004, asking for
information on the measure in question. At the same
(9) The
Commission
did
not
receive
any
comments
from
time, an aid measure to finance screening for TSE in
interested parties.
animals was notified by the Belgian authorities in
accordance with Article 108(3) of the Treaty on the
Functioning of the European Union (TFEU) (by letter of
23 January 2004, registered on 28 January 2004) and
(10) By
letter
of
17
July
2009
the
Commission
asked
Belgium
entered under the number N 54/04.
additional questions relating to the comments submitted
by Belgium. By letter of 4 September 2009, registered on
8 September 2009, Belgium asked for an extension to
(3) The
Belgian
authorities
provided
written
information
to
the deadline for reply. Belgium’s reply reached the
the Commission by letters of 6 February 2004 and
Commission by letter of 16 October 2009, registered
14 May 2004, registered on 11 February 2004 and
on 20 October 2009.
19 May 2004 respectively.
(11) Two
meetings
took
place
between
the
Belgian
authorities
(4) By
letter
of
19
July
2004
the
Commission
informed
Belgium that the measure had been transferred to the
and the Commission, on 2 October 2009 and
register of non-notified aid under the number NN
30 October 2009.
45/04, since it had become apparent that part of the
funds had already been paid out.
(12) Following
those
meetings,
additional
information
was
sent by Belgium on 14 December 2009, registered on
(5) An
informal
meeting
between
the
Belgian
authorities
and
16 December 2009. Following the simultaneous enquiry
the Commission took place on 1 September 2004.
by the Belgian competition authorities concerning
possible agreements between the laboratories, reply
( 1 ) From 1 December 2009 Articles 87 and 88 of the EC Treaty have
deadline extension requests were submitted by Belgium
respectively become Articles 107 and 108 of the Treaty on the
on 21 January 2010, 29 September 2010 and
Functioning of the European Union (TFEU). In both cases the
17 January 2011. Those extensions were granted by
provisions are identical in substance. For the purposes of this
the Commission.
Decision, references to Articles 107 and 108 TFEU shall be
understood as being to Articles 87 and 88 of the EC Treaty.
( 2 ) OJ C 11, 16.1.2009, p. 8.
( 3 ) See footnote 2.

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19.10.2011 Official
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European
Union L
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(13) A last request for information was sent by the
Belgian Intervention and Refund Bureau (BIRB), pending
Commission on 22 February 2011, to which the
a political decision on the system of financing to be
Belgian authorities responded by letter of 6 April
chosen.
2011. The Commission granted an additional extension
to enable Belgium to answer the questions pending the
outcome of the enquiry by the Belgian competition
authorities.
(18) Following
certain
comments
made
by
the
Commission
regarding the notified draft royal decree (N 54/04), in
May 2004 the Belgian authorities submitted a new
draft royal decree which attempted to respond to the
comments made by the Commission and which
(14) The Belgian authorities replied by letter of 19 May 2011,
provided for a system of fees of EUR 10,70 per bovine
registered on 25 May 2011.
presented for slaughter from 1 January 2003 onwards
and having to undergo a rapid BSE test. The Belgian
authorities referred to the fact that the tests carried out
and prefinanced during 2002 had been entirely financed
2. DESCRIPTION
by indirect State aid, i.e. by parafiscal charges. The
Belgian authorities also stated that a maximum amount
2.1. Background ( 4 )
of EUR 40 per test had been financed from 1 January
2003 onwards through parafiscal charges. The Belgian
(15) In
January
2004
the
Commission
received
a
complaint
authorities provided detailed tables showing the cost of
concerning a draft royal decree which would have
the BSE tests from 2003 onwards and a forecast of
introduced a parafiscal charge to finance BSE tests.
financing those tests by parafiscal charges and fees. The
Belgian authorities stated that the dates scheduled for
implementing the financing scheme were 1 July 2004
for the fees and 1 January 2005 for the parafiscal
(16) Following
that
complaint,
the
Commission
asked
the
charges.
Belgian authorities for explanations. In response the
Belgian authorities stated that, since 1 January 2001,
BSE tests had been compulsory for bovine animals
aged more than 30 months and for those aged more
(19) As
the
notified
draft
royal
decree
states
that
aid
had
than 24 months undergoing emergency slaughter ( 5 ).
already been granted and taxes levied since 1 January
They also notified a draft royal decree relating to the
2002, the measure was registered as non-notified on
financing of screening for TSE in animals (hereinafter
19 July 2004 under number NN 45/04. The notification
the TSE royal decree). That draft royal decree was
registered under the number N 54/04 was withdrawn by
registered under the number N 54/04. The Belgian
Belgium.
authorities stated that this new draft royal decree was
an amendment to the draft royal decree notified in
2001 by Belgium and approved by the Commission by
Decision N 21/02 of 13 February 2002 (
(20) It follows from the information submitted by Belgium in

6 ), as well as to
another draft discussed informally with the Commission
2004 that the general intention was to prefinance the
in 2003. Neither of those two drafts had been imple
tests, the amount being refunded subsequently, the idea
mented, however, and the decree notified in 2004
being to allocate part of the amount of the contributions
constituted their recasting.
to refunding the costs of the prefinanced tests.
(21) In their letter of 16 September 2004 the Belgian
(17) It is clear from the information submitted by Belgium
authorities referred to a new draft royal decree in
that the public purse had accepted, since 1 January
which the idea of a fee of EUR 10,70 per bovine tested
2001 ( 7 ), the costs of BSE tests (i.e. the costs of
was maintained for the future. The whole amount stated
sampling and analysis). From 1 January 2002 onwards
in that new draft royal decree would serve to finance BSE
the costs of these tests have been prefinanced by the
tests on bovine animals which would be slaughtered
from the entry into force of that draft. The reim
( 4 ) Only the aspects relevant to the final decision will be included here
bursement of the amounts exceeding the EUR 40 auth
— the other aspects are included in the decision initiating the formal
orised by the Community guidelines for State aid
investigation procedure.
concerning TSE tests, fallen stock and slaughterhouse
( 5 ) Regarding the compulsory tests, the Belgian authorities refer to
waste ( 8 ) of 24 December 2002 (the TSE guidelines),
Regulation (EC) No 999/2001 of the European Parliament and of
and which were prefinanced after 1 January 2003,
the Council of 22 May 2001 laying down rules for the prevention,
would be the subject of another draft which would be
control and eradication of certain transmissible spongiform encep
halopathies (OJ L 147, 31.5.2001, p. 1).
submitted to the Commission and which would address
( 6 ) State aid No N 21/02 — Belgium — Acceptance of costs of
the reimbursement of that prefinancing. That royal
compulsory BSE tests.
decree was adopted on 15 October 2004 ( 9 ) and
( 7 ) In accordance with Regulation (EC) No 999/2001, Belgium is under
entered into force on 1 December 2004.
taking rapid tests for BSE on all bovines over 30 months old
presented for slaughter and on all bovines over 24 months old
slaughtered by necessity. Since 1 July 2001 all carcases of bovines
( 8 ) OJ C 324, 24.12.2002, p. 2.
over 24 months old have also been subject to a BSE test.
( 9 ) Belgian Official Gazette of 8.11.2004, p. 75290.

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L 274/38
EN
Official Journal of the European Union
19.10.2011
(22) According to the information provided by the Belgian
contributions referred to in Article 4 of the Law of
authorities, the total amount of prefinanced costs
9 December 2004 on the financing of the FASFC ( 14 ),
beyond the maximum amount of EUR 40 for the
and by the Royal Decree of 10 November 2005 on
period from 1 January 2003 ( 10 ) to 30 June 2004
the fees referred to in Article 5 of the Law of
comprises EUR 15 237 646. According to the Belgian
9 December 2004 on financing the FASFC ( 15 ). Both
authorities, from 30 June 2004 the maximum amount
these Royal Decrees entered into force on 1 January
of EUR 40 has been complied with ( 11 ).
2006. The Royal Decree on contributions provides for
the repeal of the Royal Decree of 15 October 2004
referred to in recital 21.
(23) In
the
same
letter
of
16
September
2004
the
Belgian
authorities provided two information sheets in
accordance with Article 19 of Commission Regulation
(27) More
specifically,
the
Royal
Decree
on
fees
provides
for
(EC) No 1/2004 of 23 December 2003 on the appli
slaughterhouses to have to pay a fee of EUR 10,70 for
cation of Articles 87 and 88 of the EC Treaty to State
each bovine animal or soliped tested. The Royal Decree
aid to small and medium-sized enterprises active in the
on contributions provides for financing part of the BSE
production, processing and marketing of agricultural
tests and is charged to different sectors. The total cost of
products ( 12 ).
the BSE test is EUR 44,08, comprising EUR 12 for
sampling (financed at EUR 10,70 by the slaughterhouse
under the Royal Decree on fees, and EUR 1,30 by the
contribution), and EUR
32,08 financed by the
(24) These
two
measures
were
the
subject
of
two
exemptions,
contribution, and is paid directly to the laboratories by
under numbers XA 53/04 and XA 54/04. As stated in
the FASFC. In the N 9/05 and N 10/05 decision the
points 19 et seq. of the decision initiating the formal
Commission concluded that the financing of the FASFC
investigation procedure, the measure exempted under
by fees did not constitute State aid, that the financing of
number XA 53/04 covers the prefinancing of the BSE
overall random controls by flat-rate contributions did not
tests ( 13 ) with a maximum aid intensity of EUR 40 per
constitute State aid, that financing part of the costs of the
test, and was implemented on 1 January 2003. The legal
BSE tests by contributions was compatible State aid, and
basis for this measure is the Law of 27 December 2002
that the financing of the costs of other tests/controls
on the general budget of expenditure for 2003. The
relating to production/marketing was compatible State
measure exempted under number XA 54/04 provides
aid.
for a maximum aid intensity of EUR 33,38 per test,
and was implemented on 15 October 2004. This aid
measure is of indeterminate duration. Its legal basis is
the Law of 27 December 2003 on the general budget
(28) In
December
2006
the
Commission
sent
Belgium
new
of expenditure for 2004.
questions concerning case NN 45/04. Those questions
related in particular to the reimbursement of the
amounts paid under prefinancing since 1 January 2003.
(25) In the same letter of 16 September 2004, and in
response to questions raised by the Commission, the
Belgian authorities stated that the laboratories chosen
to carry out the tests had to comply with very strict
(29) In
their
reply,
dated
22
February
2007,
the
Belgian
authorities stated that they wished to effect an overall
conditions in order to conduct the analyses in question.
reimbursement of all the expenditure related to the BSE
analyses over a period of 15 years. In practice, a soli
darity-based recovery system was introduced through the
new system of financing the FASFC. Since 1 January
(26) Shortly after the letters of 14 May 2004 and
2006 each operator pays a contribution to the FASFC
16 September 2004 the Belgian authorities notified
and part of that contribution goes to recovering past
two draft royal decrees concerning the financing of the
costs related to the prefinancing of the BSE tests. All
activities of the Federal Agency for the Safety of the Food
active operators who kept bovine animals during the
Chain (FASFC). The purpose of these measures was to
period in question contribute equally to this system.
introduce a contribution and a fee covering the activities
of the FASFC. They were the subject of decision
C(2005)4203 of 9 November 2005 on State aid N
9/05 and N 10/05 (the N 9/05 and N 10/05 decision)
referred to in the decision initiating the formal investi
2.2. Content of the complaints lodged against the
gation procedure. These measures were adopted by the
draft royal decree on TSE
Royal Decree of 10 November 2005 fixing the
(30) According to the complaints concerning the draft royal
decree on TSE, the contribution is applied to all types of
( 10 ) In accordance with the TSE guidelines, total public aid must not
animal slaughtered in Belgian slaughterhouses, including
exceed EUR 40 from 1 January 2003.
imported products. One complainant asserted that a
( 11 ) See table at recital 25 of the Decision to initiate the formal inves
tigation procedure.
( 12 ) OJ L 1, 3.1.2004, p. 1.
( 14 ) Belgian Official Gazette, 21.11.2005 p. 49941.
( 13 ) OJ C 105, 30.4.2005, p. 3.
( 15 ) Belgian Official Gazette, 21.11.2005 p. 49918.

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19.10.2011 Official
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European
Union L
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substantial percentage of animals slaughtered in Belgian
not covered by compatible State aid. The exact cost of
slaughterhouses came from other Member States.
the tests was not known, nor was the source of addi
According to the complainants, the contribution was
tional financing in the event that the fees were not
discriminatory with regard to imported animals since
sufficient to cover the total costs of the BSE tests. Nor
the revenue from it was used to recover the costs of
had it been established whether the conditions under
BSE tests carried out on Belgian bovine animals.
which the FASFC provided the services corresponded to
market prices, in particular because the Belgian
authorities had not stated clearly that the choice of
laboratories had been made by means of an open and
transparent procedure.
2.3. Doubts raised by the Commission within the
framework of initiating the formal investigation
procedure
(31) Firstly,
it
must
be
pointed
out
that
the
initiation
of
the
(35) Secondly,
the
mechanism
of
levies
was
not
clear:
in
formal investigation procedure concerns the aid for
particular, the beneficiaries and the contributors were
financing TSE screening for animals in Belgium since
not clearly established and the mechanism for reim
1 January 2001 and the mechanisms for financing that
bursement of the prefinancing of the costs of the BSE
aid, with the exception of the aid approved by
tests was not clear. There were also questions about the
Commission decision because of its compatibility with
conditions which the parafiscal charges had to meet in
the internal market. Specifically, this means that the aid
order to be considered as complying with the rules on
approved by decisions N 9/05 and N 10/05 (which relate
State aid, in particular as regards the exclusion of
to the contributions and fees financing the FASFC) will
imported products from the parafiscal charges, as
not be assessed as regards compatibility with the rules on
regards whether exported products profited from the
State aid applicable when the aid was granted. This
aid measure financed by the charges, and whether the
decision therefore relates solely to the aid financing the
charges influenced the price of the final products given
BSE tests for the period 2001-06 and to their system of
that this was determined by changes in supply and
financing given that the aid for the BSE tests during that
demand on the free market.
period was prefinanced and that that prefinancing is the
subject of reimbursement spread over several years.
3. COMMENTS BY BELGIUM
(32) In the interests of clarity it is necessary to bear in mind
(36) On
27
February
2009
Belgium
commented
in
reply
to
the terminological distinction between a fee and a
the Commission’s doubts expressed in its decision to
contribution: on the one hand there are duties or fees
initiate the formal investigation procedure. These
which cover the costs of a service provided. In the case at
comments can be summarised as follows:
issue, these come to EUR 10,70 and have been levied
since 1 December 2004 on the basis of the Royal
Decree on TSE and subsequently on the basis of the
Royal Decree on fees financing the FASFC. On the
3.1. Classification of the financing of ESB tests as
other hand there are levies or contributions which are
State aid
levied on the basis of the Royal Decree of 10 November
2005, are charged by the FASFC, due by entities on
(37) By
definition,
Belgium
contests
the
Commission’s
classifi
Belgian territory and broken down among 7 sectors
cation of the financing of BSE tests as State aid due to
(see recital 29 of decision N 9/05 and N 10/05).
the obligatory nature of these tests. Belgium claims that
the obligation to carry out the BSE tests is imposed by
Regulation (EC) No
999/2001 of the European
Parliament and of the Council of 22 May 2001 laying
down rules for the prevention, control and eradication of
(33) The
Commission
noted,
in
its
decision
initiating
the
certain transmissible spongiform encephalopathies ( 16 ) to
formal investigation procedure, that the aid measures
protect public health. In support of its claim Belgium
for financing BSE tests are and were financed in
quotes two judgments ( 17 ) in which the Court of Justice
Belgium by subsidies and a system of parafiscal charges
held that the costs of controls carried out to protect
comprising both fees and contributions. Part of the
public health cannot be considered as compensation
revenue from those fees and contributions reimbursed
for a service and that the authority itself must bear
the prefinancing of the tests.
these costs. While Belgium recognises that the
judgments in question involve the free circulation of
goods rather than State aid, it feels that this rationale
can be applied to State aid.
(34) The
Commission
had
raised
several
problems
and
stated
that it lacked information for reaching a final assessment
( 16 ) OJ L 147, 31.5.2001, p. 1.
of the measures in question: firstly, questions arose as to
( 17 ) Judgments of the Court of 5 February 1976, Case 87-75, Bresciani v
the existence of an advantage for beneficiaries of the
Amministrazione Italiana delle Finanze [1976] p. 129 point 10, and of
15 December 1993, Joined cases C-277-91, C-318/91 and C-
services. It was not clear whether the fees for the BSE
319/91, Ligur Carni Srl e.a. v Unità Sanitaria Locale n. XV di
tests covered the part of the cost of the tests which was
Genova e.a. [1993] I-06621 points 29-31.

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Official Journal of the European Union
19.10.2011
(38) Moreover, Belgium states that as Regulation (EC)
(42) Belgium
stresses
that
in
the
Court’s
judgments
State
aid
is
No 999/2001 does not oblige enterprises to bear the
present only when the revenue from fees is used to
costs of controls, a Member State may decide to use
favour a specific group and does not equally benefit all
the ‘normal’ system of financing BSE tests. Therefore,
those who paid a fee ( 21 ). In this case the fee of
according to Belgium, the selectivity criterion for State
EUR 10,70 per tested bovine animal is paid to
aid must be seen in relation to this normal system ( 18 ).
economic actors in the bovine meat production sector.
This could only be State aid in that certain sectors or
The EUR 10,70 used for the test does not represent any
enterprises might enjoy special treatment compared to
economic advantage to these actors and therefore cannot
the normal Belgian system. Belgium states that the
be considered as State aid within the meaning of
Commission appears to think that normally the costs
Article 107 of the TFEU.
had to be borne by the farmers; this does not,
however, fall under the applicable texts. If different
systems of financing BSE tests can lead to distortions
of competition this problem can in Belgium’s view be
solved through harmonisation of legislation ( 19 ); this is in
no way a State aid issue. Belgium also quotes the GEMO
(43) According
to
Belgium
the
Commission
used
a
similar
judgment (
argument in decision N 9/05 and N 10/05. Belgium

20 ), but does not consider that this changes its
line in this particular case. In its letter of 16 October
states that in this decision the fee of EUR 10,70 was
2009 Belgium reiterates that it does not agree with the
not qualified as State aid (see recital 98 of the decision).
Commission’s classification of the financing as State aid
A similar rationale was used in decision N 21/02, where
in its decision to initiate the formal investigation
part of the costs of BSE tests partially financed out of
procedure. Nonetheless, in a spirit of cooperation,
fees paid by the sector was not considered to be State
Belgium applied the Commission’s arguments in order
aid.
to clarify the issues raised in that decision.
(44) In
its
letter
of
16
October
2009
Belgium
indicates
that
3.2. Classification of the fee
the fee was charged to the farmer and that it concerned

part of the economic costs of the BSE tests. Replying to
(39) In
Belgium’s
view
the
fee
of
EUR
10,70
per
tested
bovine
the Commission’s question, i.e. whether the fee corre
animal cannot be considered as State aid.
sponded to the true economic cost of the laboratories’
services, Belgium states that the fee only related to part
of the costs of the BSE tests, as indicated in decision N
9/05 and N 10/05. The Commission’s reasoning in
recitals 61-66 of that decision, that the costs of the
services and the amount of the fees were equal, related
(40) According
to
Belgium
State
aid
can
only
be
present
if
an
to services other than the BSE tests. Belgium reiterates
advantage is given to one or several enterprises. As a
that, regarding the BSE tests, decision N 9/05 and N
result, a received fee can only represent an advantage if
10/05 concluded that while the service in the form of
it is greater than the amount paid. If part of the BSE tests
BSE tests was State aid, the amount of the fee
is financed by the authorities, the final advantage to the
(EUR 10,70) was not aid and should be subtracted
farmer corresponds to the cost of the test minus the fee
from the cost of the tests.
paid.
3.3. Absence of overcompensation and test prices’
(41) Belgium
takes
this
argument
further
by
stating
that,
if
the
conformity with market prices
costs were recovered, this would mean demanding a
higher global payment from the farmer. In other
(45) Belgium refers to point 132 of the Community
words, if the total cost of the test has to be repaid,
guidelines for State aid in the agriculture and forestry
this would mean that in the end this cost is added to
sector 2007 to 2013 ( 22 ) (agriculture guidelines 2007-
the fee already paid.
13) which states that EUR 40 per test is ‘the best price
currently available in the Community’. Since July 2005
the FASFC’s proposed prices have been less than EUR 40.
( 18 ) General Court judgment of 18 December 2008, Government of
Gibraltar (T-211/04) and United Kingdom of Great Britain and
Northern Ireland (T-215/04) v Commission of the European Communities
( 21 ) Court judgments of 11 March 1992, Joined Cases C-78/90, C-
[2008] II-3745, points 143-146.
79/90, C-80/90, C-81/90, C-82/90 and C-83/90 Compagnie
( 19 ) To illustrate this Belgium quotes Regulation (EC) No 882/2004 of
commerciale de l’Ouest e.a. v Receveur principal des douanes de La
the European Parliament and of the Council of 29 April 2004 on
Pallice Port [1992] I-1847, point 35; of 2 August 1993, Case C-
official controls performed to ensure the verification of compliance
266/91 Celulose Beira Industrial SA v Fazenda Pública [1993] I-4337,
with feed and food law, animal health and animal welfare rules,
point 21; of 11 June 1992, Joined Cases C-149/91 and C-150/91
where Article 27 and Annexes IV and V oblige Member States to
Sanders Adour e.a. v Directeur des services fiscaux des Pyrenées-Atlan
organise the collection of fees to finance certain controls.
tiques [1992] I-3899, point 27, and of 16 December 1992, Case C-
( 20 ) Court judgment of 20 November 2003 Case C-126/01 Ministère de
17/91 Lornoy v tat belge [1992] I-6523, point 32.
l’conomie, des Finances et de l’Industrie v GEMO SA [2003] I-13769.
( 22 ) OJ C 319, 27.12.2006, p. 1.

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In the opinion of the Belgian authorities this shows that
3.7. Comments on the compatibility of aid during
the prices charged in Belgium are in line with market
the three periods identified in the decision to
prices. In decision N 9/05 and N 10/05 the Commission
initiate the formal investigation procedure (2001-
recognised that the laboratories were selected using open,
2003; 2003-2007; after 2007)
transparent and non-discriminatory procedures, and that
the service providers (i.e. the laboratories) could not be
(50) Belgium
has
no
particular
comment
to
make
regarding
seen as receiving State aid. The situation has not changed
the period from 1 January 2001 to 1 January 2003,
in the meantime. In addition, the Belgian competition
given that the Commission itself assumes, in recital 80
authorities are currently carrying out a survey of price-
of the decision to initiate the formal investigation
fixing between the laboratories regarding BSE tests. This
procedure, that the aid was probably compatible.
clearly shows, according to Belgium, that there was no
Belgium does, however, state that the aid was not
wish whatsoever to pay a supplementary price to the
more than 100 % of the costs incurred and that it
laboratories. In its letter of 16 October 2009 Belgium
agrees to provide further information in this regard if
stated that the investigation of possible price-fixing
necessary.
between the laboratories would be carried out and
should in principle be completed during the first
quarter of 2010.
(51) However, Belgium insists that this information is only
given in passing, since its initial point of view is that
State aid is not an issue in this case, because it is up
to Belgium to choose how it finances BSE tests.
3.4. Levy on imports and exports
(46) The
Belgian
authorities
state
that
the
contributions
and
(52) During the period 1 January 2003 to 1 January 2007,
fee were never applied to imports and exports. Only
Belgium indicates that no aid in excess of 100 % of the
enterprises based in Belgium have to pay a contribution
test costs was paid. It refers to decision N 9/05 and N
and only bovine animals slaughtered in Belgium and over
10/05 which already dealt with this issue.
30 months old are subject to a fee of EUR 10,70.
(53) Regarding
the
period
from
1
January
2007,
Belgium
never granted aid exceeding EUR 40, as the cost of the
(47) Belgium
stresses
that
the
Commission
already
looked
at
tests was less than that amount.
these measures in decision N 9/05 and N 10/05 and
concluded that the contributions were not discriminatory
towards imported or exported products and were not
contrary to the provisions of the Treaty.
(54) Belgium,
as
an
enclosure
to
its
comments,
submits
a
detailed sequence of the measures taken with regard to
the financing of BSE tests. As this information is largely
repeated in the descriptive part of this decision, the
sequence in this section is not exhaustive. Some
3.5. Absence of a mechanism through which the
elements are, however, repeated below.
slaughterhouses pass on the fee to producers or
other market actors
(55) The
sequence
of
BSE
test
financing
is
as
follows:
(48) The
Belgian
authorities
indicate
that
the
slaughterhouses
pass on the cost of fees to their clients just as any normal
enterprise passes on costs incurred to its clients. Normal
market mechanisms therefore apply to this passing on of
— 1 January 2001 to 31 December 2001: tests entirely
costs. Moreover, itemising the cost of fees separately on
financed by the Exchequer,
the invoices submitted to producers is normal practice. In
this connection Belgium quotes recitals 93 and 95 of
decision N 9/05 and N 10/05, where the criteria in
point 25 of the TSE guidelines are considered to be met.
— 1 January 2002 to 30 June 2004: tests prefinanced
by the BIRB. The total amount prefinanced is
EUR 67 156 527,65,
3.6. Classification of the beneficiaries as small and
— 1 July 2004 to 30 November 2004: tests prefinanced
medium-sized enterprises (SME)
by FASFC,
(49) Belgium
states
that
all
Belgian
farmers
are
SMEs,
based
on the following criteria: they employ less than 250
people, their annual turnover does not exceed EUR 40
— 1 December 2004 to 31 December 2005: a fee of
million or their annual balance sheet total is less than
EUR 10,70 for each bovine animal tested pursuant to
EUR 27 million, and 25 % or more of the enterprise is
the Royal Decree of 15 October 2004, as well as
not owned by another company or companies which are
financing by the FASFC out of its reserves and the
not SMEs.
reimbursable advance provided by the Exchequer,

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— from 1 January 2006: financing via a fee of
a service and passed on to the economic actors.
EUR 10,70 for each bovine animal tested and from
However, in a spirit of cooperation, Belgium has
contributions imposed on seven different sectors ( 23 ).
decided to reply to the Commission’s questions by
These contributions are also designed to reimburse
using the logic expressed in the decision to initiate the
the costs of the BSE tests prefinanced since
formal investigation procedure.
1 January 2002. The fee was then indexed at
EUR 11,07 from 1 January 2008.
(58) Concerning
the
share
of
Community
funding,
Belgium
confirms that this had been included in the previously
(56) The
prices
of
the
BSE
tests
are
as
follows:
communicated figures.
(EUR)
(59) Belgium
then
indicated
that,
with
regard
to
funding
during the period from 30 June 2004 to 31 December
Period
Total cost of
2005, this had been carried out by FASFC based on
tests (*)
Amount of fee
sources of funding available to it and taken from the
01.01.2001-31.01.2001 111,81
/
former bodies from which it had been created. No para
fiscal charges had been levied during this period.
01.02.2001-31.03.2001 89,50
/
(60) The Commission had asked about the link between the
01.04.2001-31.12.2001 64,71
/
amount of EUR
15
237
646 and that of
EUR 67 156 527,65 mentioned in Belgium’s comments
01.01.2002-15.03.2002 64,74
/
(see recital 55). Belgium replied that the first sum was an
integral part of the second amount. The Belgian
16.03.2002-31.12.2003 63,45
/
authorities also indicated their willingness to perform
calculations to verify the correctness of the amount
mentioned.
01.01.2004-15.01.2004 63,42
/
16.01.2004-30.06.2004 53,88
/
(61) Regarding
fees,
Belgium
states
that
these
were
borne
by
the farmers and therefore could not be State aid. Here
01.07.2004-30.11.2004 43,44
/
Belgium refers to decision N 9/05 and N 10/05 which
indicated that only EUR 33,38 of the EUR 44,08 total
cost represented State aid. The other EUR 10,70 was
01.12.2004-31.12.2004 43,44 10,70
not State aid and was therefore subtracted from the
price of the test during the evaluation of its conformity
01.01.2005-30.06.2005 43,47 10,70
with the maximum aid intensity of EUR 40 per test.
01.07.2005-31.12.2005 38,62 10,70
(62) For
reference,
Belgium
states
that
the
only
difference
01.01.2006-30.09.2006 40,35 10,70
between its system and that approved by the
Commission in decision N 9/05 and N 10/05 was the
indexation of the fee which increased from EUR 10,70 to
01.10.2006-31.12.2006 39,32 10,70
EUR 11,07.
01.01.2007-31.12.2007 39,35 10,70
(63) In
its
letter
of
1
December
2009,
Belgium
corrects
its
01.01.2008-31.12.2008 39,38 11,07
previous figures regarding the number of tests carried
out. It indicated that these figures replaced those
(*) These costs include laboratory costs, the costs of veterinarians carrying
previously given in the letters preceding and following
out the analyses on behalf of the public authority, and the sampling
the decision to initiate the formal investigation
kits.
procedure.
(64) These
changes
were
due
to
the
fact
that
the
number
of
3.8. Replies to additional questions asked by the
samples taken into consideration before was incorrect.
Commission
The original calculations had been based on a theoretical
rate of 3 samples per hour, while in reality 12 samples
(57) In
its
letter
of
16
October
2009
Belgium
makes
several
had been taken per hour on the ground. This increase in
clarifications in reply to the questions asked by the
the number of tests meant a lower price for each sample,
Commission on 24 July 2009 after receiving Belgium’s
also affecting the total price per test, as the cost of the
comments. Belgium begins by reiterating its position that
tests included a cost per hour, which decreased due to
a Member State is not obliged to make economic actors
the larger number of samples taken per hour. In addition,
bear the costs of the BSE tests. Since these are linked to
the number of animals slaughtered in 2003 and 2004
public health protection, the costs of controls imposed
was revised downwards compared to the previous
by public authorities cannot be seen as compensation for
figures. The figures mentioned in the Belgian letter of
1 December 2009 are those for bovine animals
( 23 ) These contributions and fees were approved by decision N 9/05
slaughtered for human consumption, reported to the
and N 10/05.
Commission for 2003 and 2004.

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19.10.2011 Official
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the
European
Union L
274/43
(EUR)
Hourly fee:
Intervention
2003
Laboratory
Cost of
costs
veterinary
> EUR 40 per
surgeon
sampling
Cost of test kit Total
cost
test
January 52,06 32,02 2,67 0,69 55,42 15,42
February 52,06 32,02 2,67 0,69 55,42 15,42
March 52,06 32,02 2,67 0,69 55,42 15,42
April 52,06 32,02 2,67 0,69 55,42 15,42
May 52,06 32,02 2,67 0,69 55,42 15,42
June 52,06 32,02 2,67 0,69 55,42 15,42
July 52,06 32,02 2,67 0,69 55,42 15,42
August 52,06 32,02 2,67 0,69 55,42 15,42
September 52,06 32,02 2,67 0,69 55,42 15,42
October 52,06 32,02 2,67 0,69 55,42 15,42
November 52,06 32,02 2,67 0,69 55,42 15,42
December 52,06 32,02 2,67 0,69 55,42 15,42
(EUR)
Hourly fee:
Intervention
2004
Laboratory
Cost of
costs
veterinary
> EUR 40 per
surgeon
sampling
Cost of test kit Total
cost
test
1-15 January 52,06 32,02 2,67 0,69 55,42 15,42
16-31 January 42 32,02 2,67 0,69 45,36 5,36
February 42 32,02 2,67 0,69 45,36 5,36
March 42 32,02 2,67 0,69 45,36 5,36
April 42 32,02 2,67 0,69 45,36 5,36
May 42 32,02 2,67 0,69 45,36 5,36
June 42 32,02 2,67 0,69 45,36 5,36
July 31,90 32,02 2,67 0,69 35,26 –
4,74
August 31,90 32,02 2,67 0,69 35,26 –
4,74
September 31,90 32,02 2,67 0,69 35,26 –
4,74
October 31,90 32,02 2,67 0,69 35,26 –
4,74
November 31,90 32,02 2,67 0,69 35,26 –
4,74
December 31,90 32,02 2,67 0,69 35,26 –
4,74
(65) Based on the table in recital 64, Belgium concludes that the total cost of BSE tests has been less than
EUR 40 since 1 July 2004.
(66) On this basis the Belgian authorities also correct the table provided prior to the initiation of the
formal investigation procedure and mentioned in recital 25 of the decision to initiate that procedure.
These latest figures are real rather than estimates as previously provided. It can be derived from this
data that the total prefinanced amount was not EUR 15 237 789,90 as previously estimated but
EUR 6 619 810,74.

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19.10.2011
and that the recovered amounts would therefore be
Period
Test price Number of
(EUR)
tests
Total (EUR)
included in FASFC’s positive balance. This surplus must
be seen as the reimbursement of the BSE tests.
1.1.2003
Indirect
40,00 373
550 14
942
015,90
15.1.2004 State aid
Cost of test 31,08 373
550 5
759
524,54
> EUR 40
(71) Concerning the payment of the cost of BSE tests by the
Total 71,08 373
550 20
701
540,44
producer, Belgium reiterates that there was no specific
system obliging the slaughterhouses to bill the fee for
16.1.2004 Indirect
40,00 160
551 6
422
043,10
the BSE test to the producer, but this took place in a
30.6.2004 State aid
spontaneous way. Belgium submitted several invoices
Duty 22,02 160
551 860
286,19
clearly showing that the fee was billed as a separate
item. One is the slaughterhouse’s bill to the producer,
Total 62,02 160
551 7
282
329,29
where the fee is deducted from the total amount
payable by the slaughterhouse to the producer for the
1.1.2003
Total pre-financed budget 6 619 810,74
animal. In Belgium’s opinion this is evidence that the
30.6.2004 above maximum of EUR 40
producer is the person finally liable for payment of the
BSE test to FASFC.
(67) Belgium
also
states
that,
if
the
competition
authority’s
inquiry reveals that the prices for laboratory BSE tests
were increased due to possible illegal price fixing, it
would do all it could to recover the surplus, if
(72) In
its
final
letter
of
25
May
2011
Belgium
states
that
the
necessary by taking the laboratories to court.
aid amounts could be the subject of a cumulative appli
cation for de minimis aid pursuant to Commission Regu
lation (EC) No 1860/2004 of 6 October 2004 on the
application of Articles 87 and 88 of the EC Treaty to
(68) In
their
letter
of
6
April
2011
the
Belgian
authorities
de minimis aid in the agriculture and fisheries sectors ( 24 )
confirm that the fee of EUR 10,70 was solely for the
and of the EUR 40 of compatible aid per test, for the
payment of the BSE test by the beneficiary at that
Regulation’s period of application.
moment, rather than as reimbursement of the prefi
nancing of previous BSE tests.
4. THIRD-PARTY COMMENTS
(73) During
this
procedure
the
Commission
did
not
receive
(69) In that same letter Belgium indicates that the total
any comments from interested third parties.
amount prefinanced by the BIRB was
EUR 67 156 527,65. FASFC reimbursed part of that
amount as follows:
5. ASSESSMENT
5.1. Evaluation of whether there is aid
Reimbursed by FASFC
(74) First
of
all,
Belgium
indicated
in
its
comments
on
the
2005 EUR
4
477
102
decision initiating the formal investigation procedure
that it considered that the costs of the BSE tests were
2006 EUR
4
477
102
financed by the Member States because of their
compulsory nature and that no Community rules
2007 No
reimbursement
(a
request
for
required enterprises to bear the costs of controls. The
extension was made and granted
agricultural guidelines for 2007-13 and the
subject to the payment of interest)
Commission’s practice clearly indicate that the different
levels of test costs may distort competition, and that
2008 EUR
194
901
(interest
on
the
most States grant aid to cover the costs of these tests,
reported reimbursement)
whence the need the regulate its intensity in order to
limit the distortions of competition caused by this aid.
From 2008 No
more
reimbursements
to
the
BIRB In particular, the TSE guidelines clearly state that the aid
— programme act of 22 December
awarded by the States risks distorting competition. Point
2008
24 of the TSE guidelines, for example, states that ‘from
1 January 2003, as far as compulsory BSE testing of
Still to be reimbursed EUR
58
202
323
bovine animals slaughtered for human consumption is
concerned, direct and indirect State aid, including
Community payments, may not be more than EUR 40
per test. The obligation for testing may be based on
(70) Belgium
states that the government had decided to
suspend the prefinancing reimbursement to the BIRB,
( 24 ) OJ L 325, 28.10.2004, p. 4.

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19.10.2011 Official
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European
Union L
274/45
national or Community legislation.’ These guidelines
5.1.1.2. F r o m 1 J a n u a r y 2 0 0 2 t o 3 0 J u n e
were presented to the Member States, who were asked
2 0 0 4
to take the appropriate measures and bring their schemes
into line with these guidelines. Likewise, as far as the
(81) During the following period, that is from 1 January 2002
agricultural guidelines for 2007-13 are concerned, what
to 30 June 2004, the tests were pre-financed by the
qualifies as State aid with regard to the BSE tests is set
BIRB, pending a structural solution for financing the
out in points 132(f) and subsequent. Furthermore, it is
tests. The BIRB is a federal public institution with a
important to emphasise that Decision N 9/05 and N
legal personality, resulting from the merger of the
10/05, where a part of the financing of the BSE tests
former Office Belge de l’conomie et de l’Agriculture
was classified as aid, was not the subject of an appeal by
(OBEA) and the agriculture division of the former
the Belgian authorities, which implicitly means that the
Office Central des Contingents et Licences (OCCL). It is a
Belgian authorities accepted this classification of the aid
category B para-state organisation reporting to the
for financing BSE tests as State aid.
Minister for agriculture, SMEs and the self-employed.
The BIRB is an accredited paying agency in the context
of the Common Agricultural Policy, and financed by the
EAGGF (
(75) From
these elements, we can deduce
that Belgium’s

25 ). It may also be entrusted with tasks arising
calling into question of the classification of the aid for
from the federal or regional governments’ agricultural
financing BSE tests as State aid by virtue of the obli
policy. To balance its administrative budget, the BIRB
gatory nature of these tests has no basis given the texts
has a government endowment entered in the budget
that apply and that have applied for many years.
for its supervisory role at federal level (the Federal

Public Service Economy) and some revenue of its own
(revenue from some fees and limited assets). In view of
the above, financing through the BIRB constitutes
(76) Consequently, the Commission is examining the
financing through State resources.
measures in question on the basis of Article 107 of
the TFEU. Article 107(1) of the TFEU provides: ‘Save as
otherwise provided in this Treaty, any aid granted by a
5.1.1.3. F r o m 1 J u l y 2 0 0 4 t o 3 0 N o v e m b e r
Member State or through State resources in any form
2 0 0 4
whatsoever which distorts or threatens to distort
competition by favouring certain enterprises or the
(82) From
1
July
2004
to
30
November
2004,
the
tests
were
production of certain goods shall, in so far as it affects
prepaid by the FASFC (Federal Agency for the Safety of
trade between Member States, be incompatible with the
the Food Chain). The legislation in force at the time (that
internal market’.
is, chiefly the Law of 4 February 2000 on the creation of
the FASFC ( 26 )) indicated that the FASFC was financed
mainly by revenue sources such as the product of
(77) For
a
measure
to
be
covered
by
Article
107(1)
of
the
duties, charges and fees, the products of administrative
TFEU, each of the following four conditions must be
fines, occasional revenue, gifts and legacies, etc. ( 27 ). The
cumulatively met: 1) the measure must be financed by
FASFC is a public institution with legal status, classed as
the State or through State resources and be attributable
Category A under the Law of 16 March 1954 on the
to the State; 2) it must selectively concern certain enter
supervision of certain bodies of public interest ( 28 ).
prises or sectors of production; 3) it must involve an
Consequently, it follows from these considerations that
economic advantage for the recipient enterprises; 4) it
the funds provided by the FASFC constitute State
must affect trade within the EU and distort or threaten
resources and that their allocation is decided by public
to distort competition.
authority, the FASFC being subject to the hierarchical
authority of the Minister responsible for public health.
(78) In
the
following
recitals,
these
four
criteria
will
be
applied
to the measures which may constitute State aid.
5.1.1.4. F r o m
1
D e c e m b e r
2 0 0 4
t o
3 1 D e c e m b e r 2 0 0 5
(83) As
far
as
the
period
between
1
December
2004
(date
on
(79) As
indicated
in
recital
55,
several
financing
systems
were
which Royal Decree of 15 October 2004 entered into
used to finance the costs of the BSE tests. As part of the
force) and 31 December 2005 (date on which the Royal
examination of the criterion of the presence of State
Decrees of 10 November 2005 entered into force) is
resources, this Decision makes a distinction between
concerned, the BSE tests were financed by a fee of
the different means of financing the BSE tests.
EUR 10,70 per bovine tested in addition to financing
by the FASFC from its reserves and from the repayable
advance made available to it by the national exchequer.
5.1.1. Presence of State resources
5.1.1.1. F r o m
1
J a n u a r y
2 0 0 1
t o
(84) The
partial
financing
from
the
FASFC
provided
from
its
3 1 D e c e m b e r 2 0 0 1
own funds constitutes a State resource (see recital 82).
(80) During
the
period
from
1
January
2001
to
31
December
2001, the BSE tests were financed entirely by the
( 25 ) Source: www.birb.be
( 26 ) MB of 18.2.2000, p. 5053.
national exchequer. There is no doubt that this was a
( 27 ) See Article 10 of the Law of 4 February 2000.
case of financing through State resources.
( 28 ) MB of 24.3.1954, p. 2210.

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(85) With regard to the question of whether the fees
5.1.2. Selective advantage for an enterprise
constitute State resources, they may be State resources
if they do not cover the real full costs of the services they
(89) In examining the existence of an advantage, it is
are intended to pay for. Indeed, if the fee and the cost of
necessary to distinguish, on the one hand, the measures
the service provided are not the same, the surplus
financed by State resources, including contributions, and
constitutes a State resource at the disposal of the State
the measures financed by fees.
body to whom the fee is paid. This is why it is important
to verify whether the fees paid to the FASFC for the BSE
tests represent payments for the FASFC’s services
effectively provided to the enterprises and whether or
not they were based on market prices (see recital 54 of
(90) With
regard
to
the
measures
financed
through
State
the decision initiating the formal investigation
resources, including the contributions, the Commission
procedure). This question is dealt with below, during
has constantly held the opinion ( 29 ) that if the State
the examination of the concept of advantage.
finances the costs of the obligatory controls that
concern the production or the marketing of products,
this has to be considered as a selective advantage for
the enterprises
( 30 ). Indeed, the State reduced the
charges that are normally included in the budget of an
5.1.1.5. F r o m 1 J a n u a r y 2 0 0 6 o n
enterprise. It can be deduced from the above that the
farmers, the slaughterhouses and other entities which
(86) As far as the period following the entry into force of the
process, handle, sell or market products from bovine
Royal Decrees of 10 November 2005, i.e. the period
animals for whom BSE tests are obligatory by virtue of
starting on 1 January 2006, is concerned, it is
the legislation in force during the period in question, are
necessary to examine whether the fees and the
conducting an economic activity and have benefited from
contributions set by these Decrees constitute State
State aid for the financing of the BSE tests by the State,
resources. This question was already examined in the
and this since 1 January 2001.
context of Decision N 9/05 and N 10/05. In recital 44
there was a general indication that the contributions
constituted State resources and that the fees could
constitute State resources if those fees did not cover
the real full costs of the services they were intended to
(91) The
arguments
put
forward
by
Belgium
(see
recitals
37
et
pay for. The BSE tests were part-financed by the fees and
seq.) according to which the financing of the BSE tests
part-financed by the contributions. Decision N 9/05 and
was compulsory with a view to protecting public health
N 10/05 concluded that the part-financing of the costs of
and that it is up to the Member State to decide on the
the BSE tests by the fees did not constitute State aid and
normal system of financing BSE tests may not be
that the financing by the contributions was a compatible
accepted for the reasons set out in recital 74. In the
form of State aid. As indicated in recital 34 of the
more specific context of the selectivity assessment,
decision initiating the formal investigation procedure,
Belgium argued that one could not speak of selectivity
the aid approved by Commission Decision is not the
except where certain sectors or enterprises would benefit
subject of this decision and will not be re-examined here.
from preferential treatment in comparison with the
normal system. The fact of there being differences
between the various Member States as regards the
financing of the BSE tests and that this could lead to
distortions of competition is not, in Belgium’s view, a
(87) However, in light of the information provided by
Belgium following the initiation of the formal investi
question of State aid but of harmonisation of legislations.
gation procedure, it emerged that the revenue from the
contributions was used in part in 2005 and 2006 to
reimburse the pre-financing of the BSE tests exceeding
EUR 40 during the period from 1 January 2003 to
1 December 2004. However, this had not been
(92) However,
this
argument
cannot
be
accepted.
As
indicated
mentioned in Decision N 9/05 and N 10/05.
in Decision N 9/05 and N 10/05, the selectivity criterion
Consequently, a part of the contributions was used to
is met when the advantage is reserved for some enter
finance the BSE tests conducted during the period
prises or one sector. In this case, at national level, the
between 1 January 2003 and 1 December 2004, the
financing of the BSE tests by the State only benefited one
aim being to recover from the farmers in a non-indi
given sector, namely the sector involved in breeding
vidual fashion the pre-financed costs of the compulsory
animals subject to BSE tests. At Community level, the
BSE tests that exceeded the maximum amount of
fact that the BSE tests were financed by the State or
EUR 40.
through State resources favoured Belgian enterprises
and gave those enterprises an advantage over their
( 29 ) See in particular recital 73 of Decision N 9/05 and N 10/2005
which states that ‘the Commission has always considered that the
(88) Allocating part of the receipts of these contributions to
financing by the State of the costs of the obligatory controls
the reimbursement of the pre-financing of the tests does
directly linked to production or to the placing on the market of
a product constitutes a selective advantage benefiting those enter
not in any way change the classification as State
prises’.
resources as per Decision N 9/05 and N 10/05.
( 30 ) See the TSE guidelines, e.g. points 7 and 12.

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Union L
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foreign competitors for whom the mandatory BSE tests
of the services, given that this cost is invoiced to
were not financed by the State or through State
producers in a similar way to the other costs incurred
resources. In the preamble to the TSE guidelines (points
during slaughtering and invoiced to producers.
8 and 9), it was clearly indicated that the ongoing
harmonisation obliging the sector to support the costs
was slow, and that the Commission had thus decided to
clarify and modify its policy on State aids with regard to
the costs generated by the BSE tests. Point 24 of the TSE
(95) Consequently,
from
the
above
we
can
deduce
that
the
guidelines, for its part, indicates that the examination
doubt expressed during the opening of the formal inves
requirement could be based on Community or national
tigation procedure, in recital 44, which indicates that the
legislation. This point clearly indicates that there is no
charge for the slaughterhouses was a lot higher than for
Community harmonisation with regard to the obligation
other beneficiaries of the service, had arisen from the
to perform the tests, which implies that this could also
information Belgium submitted on how the amount of
lead to an aid selectively benefiting the enterprises of a
this fee was invoiced to the producers.
given Member State. In conclusion, the measures
financed through State resources, including the
contributions, give a selective advantage to farmers,
slaughterhouses and other entities that process, handle,
(96) As for whether the price for the BSE tests was the market
sell or trade in bovine animal products that are subject to
price, Belgium firstly indicated to the Commission that
compulsory BSE testing under the applicable legislation,
since July 2005 the prices proposed by the FASFC were
by reducing the costs they must pay. These advantages
less than EUR 40, while the agricultural guidelines for
are not conferred by direct payments, but by the public
2007-13 cite EUR 40 as the lowest price available in
authorities covering the costs of the BSE tests by directly
the Community at that time. This is an indication that
paying the laboratories which perform the tests on
the prices were in line with prices elsewhere in Europe
request from the slaughterhouses and invoice the costs
during the period in question. Secondly, Belgium
to the FASFC.
responded to the decision to initiate the formal investi
gation procedure by saying that the situation was
identical to the one examined in Decision N 9/05 and
N 10/05, which concluded that the service providers
(93) As far as the aid measures financed by the fees are
were designated in accordance with open and non-
concerned, whether an advantage is conferred through
discriminatory procedures (see recital 82 of Decision N
these fees must be verified. As indicated in the decision
9/05 and N 10/05). Thirdly, the Commission noted the
to initiate the formal investigation procedure (in recitals
commitment made by Belgium to take all possible legal
61 and 62), there would be no question of an advantage
measures to recover payments made in excess of the
if those fees were less than the real costs to the economic
price of the tests, in the event of the Belgium
operators of the services effectively provided by the
competition authority’s enquiries concluding that there
FASFC. Whether the charges represent payments for
was an illegal agreement between the laboratories, the
the FASFC services effectively provided to the enterprises
effect of which was to increase the price of the tests.
must be verified. More specifically, the question arises of
On the basis of these considerations, the Commission
whether an advantage was conferred on the slaughter
concludes that the fees may not be considered as State
houses and producers who paid the fee of EUR 10,70
resources, in that these fees paid to the FASFC for the
per bovine tested during the period between
BSE tests represent payments for the FASFC services
1 December 2004 and 31 December 2005, and
effectively provided to the enterprises and were based
whether they effectively benefited from the services
on market prices.
provided by the FASFC.
(94) The
Belgian
authorities
indicated
in
the
response
to
the
(97) It
can
be
concluded,
in
accordance
with
Decision
N
9/05
decision to initiate the formal investigation procedure
and N 10/05, that this fee did not give any advantage to
that the fee of EUR 10,70 per bovine tested was the
the slaughterhouses or the producers, because the fee
only source of financing for the FASFC to support the
covers a payment for a service from which the person
costs of the BSE tests, with the exception of the FASFC
who paid the fee benefited, and that the test price was
reserves and the recoverable advances from the national
based on the market price. This conclusion also permits
exchequer. The fee was paid by the slaughterhouses. The
the conclusion that there was no financing through State
Belgian authorities mentioned that there was no legal
resources, given that the test price was in line with the
obligation for the slaughterhouses to invoice the
market price.
amount of the fee to their clients, but that the slaughter
houses’ practice was to separately invoice the cost of the
fee to the producers. This was proved by Belgium by
means of the invoices provided by way of example,
5.1.3. Distortion of competition and effect on trade within the
where it is clearly visible that the slaughterhouses
EU
separately invoice the cost of the fee to the producers.
Belgium considers that there is no need to formally
(98) As far as the other conditions governing the application
regulate the way in which the slaughterhouses repay
of Article 107(1) of the TFEU are concerned, the measure
the fee to the producers or other potential beneficiaries
may have an effect on Belgium’s position in this

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sector ( 31 ). As the Belgian undertakings are active in a
concerning State aid unless they constitute the means of
highly competitive international market, the measure
financing an aid measure, such that they form an integral
distorts or threatens to distort competition ( 32 ) and
part of that measure ( 33 ). For a tax or part of a tax to be
affects trade between Member States.
considered as forming an integral part of an aid measure,
it must be hypothecated to the aid measure under the
relevant national rules, in the sense that the revenue from
the tax must be allocated for the financing of the aid
5.1.4. Conclusions on the nature of aid within the meaning of
measure ( 34 ). If such a hypothecation exists, the revenue
Article 107(1) of the TFEU
from the tax directly influences the amount of the aid ( 35 )
and, consequently, the assessment of the compatibility of
(99) In light of the above, the Commission considers that the
this aid with the internal market. (
financing of the BSE tests through contributions and

36 )
other State resources as indicated above is an advantage,
financed through State resources. This advantage distorts
or threatens to distort competition by favouring certain
enterprises and certain productions and is thereby likely
(103) Therefore, consideration has to be given to whether the
to affect trade between Member States. The advantage is
contribution levied since 1 July 2004 meets the criteria
conferred to farmers, slaughterhouses and other entities
set out in recital 102, and distinctions must be made by
which process, handle, sell or market products from
the legal instruments applicable during the different
bovine animals subject to a mandatory BSE test by
periods. The aid financed was the subject of an
virtue of the applicable legislation. Consequently, the
exemption, but this exemption does not cover the
Commission concludes that these measures fall within
system for financing the aid, so consequently the
the scope of Article 107(1) of the TFEU. However, the
lawfulness of the financing system throughout the
part of the BSE tests that is financed by the fees does not
entire period in question must be examined.
constitute aid, given that those who pay the fee benefit
from the services provided at the market price.
5.3.1. From 1 July 2004 to 31 December 2005
5.2. Unlawfulness of the aid
(104) During this period the aid was pre-financed by the
(100) Since 1 January 2001 the Belgian authorities have not
FASFC and by the fees in virtue of the Royal Decree of
notified the Commission, within the meaning of
15 October 2004 (although the latter are not covered by
Article 108(3) of the TFEU, of the aid measures
this section, given that they are not considered as aid —
involved in the financing of the BSE tests. Aid
see recital 97). It is necessary to determine whether the
measures that fall under Regulation (EC) No 1/2004 are
financing system is an integral part of the aid measure.
exempt from the reporting obligation, provided that they
The legislation in force does not suggest that the means
meet the conditions set out in that Regulation.
of financing of the FASFC be hypothecated to the
Consequently, they are unlawful if they do not meet
financing of the BSE tests, nor that the revenue from
those conditions.
the tax must be allocated to financing the aid. In fact,
the Law of 4 February 2000 creating the FASFC provides
for different sources of financing for the FASFC (see
5.3. Financing the aid
recital 82). Furthermore, it cannot be concluded that

the revenue from the tax directly influences the
(101) With regard to State aid part-financed by a para-fiscal
amount of the aid, given that the tests are financed by
tax, i.e. the contribution, the measures financed by the
both fees and by the FASFC for the remainder.
aid and the financing of the aid itself must be assessed by
Consequently, the amount of aid paid by the FASFC
the Commission. Indeed, the possible incompatibility of
varies on the basis of the price of the tests and not on
the financing of a State aid measure with the internal
the basis of the contributions paid to the FASFC. In
market would also make the aid itself incompatible,
conclusion, there is no hypothecation between the
even where the awarding of the aid had respected the
revenue from the contributions and the reimbursement
relevant competition rules.
of the pre-financing.
( 33 ) Judgment of the Court of 13 January 2005, Streekgewest Westelijk
Noord-Brabant/Staatssecretaris van Financin (C-174/02, ECR 2005, p.
(102) According to established case-law, taxes do not fall
I 85), paragraph 25.
within the scope of the provisions of the TFEU
( 34 ) Streekgewest Judgment, cited above in the footnote on page 36,
paragraph 26, Judgment of the Court of 27 October 2005,
Nazairdis SAS e.a./Caisse nationale de l’organisation autonome
( 31 ) Belgium has a share of 2,1 % in agricultural production in EU in
d’assurance vieillesse des travailleurs non salariés des professions indus
2004 (source: Agriculture in the EU — Statistical and economic
trielles et commerciales (Organic) (Joined Cases C-266/04 to C-
information 2005).
270/04, C-276/04 and C-321/04 to C-325/04, ECR 2005, p. I-
( 32 ) According to the case law of the Court of Justice, improvement in
9481), paragraphs 46 to 49.
the competitive position of an undertaking resulting from a State
( 35 ) Judgments of the Court of 15 June 2006, Air Liquide/Ville de Seraing
aid generally points to a distortion of competition compared with
et Province de Liège (Joined Cases C-393/04 and C 41/05, ECR.
other competing undertakings not receiving such assistance,
2006, p. I-5293), paragraph 46, and Streekgewest, cited above in
(Judgment of the Court of 17 September 1980, Philip Morris
the footnote on page 36, paragraph 28.
Holland BV/Commission (Case C-730/79, ECR 1980, p. 2671,
( 36 ) Judgment of the Court of 25 June 1970, France v Commission
paragraphs 11 and 12).
(47/69, ECR 1970, p. 487), paragraph 17, 20 and 21.

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5.3.2. From 1 January 2006 on
(110) Pursuant to point 23.3 of the Community Guidelines for
State aid in the agricultural sector ( 38 ) for the period
(105) Since that date, the question of the contributions is
2000-06 (hereinafter ‘the 2000-06 agricultural
regulated by the Royal Decree on the contributions for
guidelines’) and the Commission notice on the deter
financing the FASFC. Decision N 9/05 and N 10/05
mination of the applicable rules for the assessment of
examined the system of financing through contributions
unlawful State aid ( 39 ), all unlawful aid within the
and concluded that the part-financing of the costs
meaning of Article 1(f) of Council Regulation (EC)
connected with the BSE tests did not involve discrimi
No 659/1999 of 22 March 1999 laying down detailed
nation against imported or exported products and was
rules for the application of Article 93 of the EC
not contrary to the provisions of the Treaty ( 37 ). As
Treaty ( 40 ) must be assessed in accordance with the
indicated in recital 31, this Decision does not have any
rules and guidelines in force at the time the aid was
bearing on previously approved measures. However,
granted. In 2002, the Commission adopted the TSE
given that Belgium indicated that a part of the
guidelines. They applied between 1 January 2003 and
contributions were used, from 1 January 2006, to
31 December 2006 ( 41 ). Point 44 of the TSE guidelines
reimburse the pre-financing of earlier BSE tests, the
provides that, except for cases relating in particular to
Commission is entitled to examine the financing
BSE tests, unlawful aid within the meaning of Article 1(f)
system with regard to the contributions financing the
of Regulation (EC) No 659/1999 is to be examined in
reimbursement of the pre-financing of the BSE tests.
accordance with the rules and guidelines applicable at the
time the aid was granted. Given that the aid was granted
between 1 January 2001 and 31 December 2005, the
TSE guidelines are the appropriate framework for
(106) Belgium has indicated that the financing system was
examining this aid.
unchanged, apart from the indexation of the fee. The
only element that was changed is the use of revenue
from the contributions to reimburse the pre-financing
(111) In accordance with point 194(c) of the 2007-13 agri
of the BSE costs in 2006.
cultural guidelines, the Commission will cease to apply
the TSE guidelines from 1 January 2007, except for
unlawful aid as set out in point 43 et seq. of those
guidelines.
(107) As for the question of whether this financing is an
integral part of the aid measure, the answer is no. The
allocation of the contributions after 2006 for reim
(112) Two periods can be distinguished on the basis of the
bursing the pre-financing of the tests did not affect the
different legal provisions that apply.
amount of aid awarded. Furthermore, the Belgian
authorities indicated that the recovery system was a soli
darity-based recovery system whereby each operator paid
5.4.1. Period from 1 January 2001 to 31 December 2002:
a contribution to the FSCA and a part of that
application of point 11.4 of the 2000-06 agricultural
contribution went to recovering past costs linked to
guidelines as referred to in point 45 of the TSE
pre-financing the BSE tests. All active operators that
guidelines
had bovine animals in the period in question contributed
equally to that system, but they were not the only
(113) Point 45 of the TSE guidelines provides that, as regards
contributors. Consequently, the Commission concludes
unlawful State aid towards the costs of BSE tests granted
that the financing of the aid was not an integral part
before the date of application of the TSE guidelines (i.e.
of the aid measure in question.
1 January 2003), the Commission is to evaluate the
compatibility of such aid in line with point 11.4 of the
2000-06 agriculture guidelines and its practice since
2001 of accepting such aid of up to 100 %.
5.4. Appraisal of the compatibility of the aid
measures
(114) In order to be considered compatible, in accordance with
(108) Where the aid constitutes State aid and falls under
point 11.4 of the 2000-06 agricultural guidelines:
Article 107(1) of the TFEU, it is necessary to examine
whether it can be considered compatible with the
internal market by virtue of Article 107(2) and (3) of
— the measure must be part of an appropriate
the TFEU.
programme at Community, national or regional
level for the prevention, control or eradication of
the disease concerned (point 11.4.2),
(109) In the light of the measure in question, only
Article 107(3)(c) of the TFEU, which stipulates that aid
— the objective of the measure should be either
to facilitate the development of certain economic
preventive or compensatory, or a combination of
activities or of certain economic areas may be considered
the two (point 11.4.3),
to be compatible with the internal market where such aid
does not adversely affect trading conditions to an extent
contrary to the common interest, could apply.
( 38 ) OJ C 28, 1.2.2000, p. 2.
( 39 ) OJ C 119, 22.5.2002, p. 22.
( 40 ) OJ L 83, 27.3.1999, p. 1.
( 37 ) See recitals 100 et seq. of Decision N 9/05 and N 10/05.
( 41 ) See point 194(c) of the 2007-13 agricultural guidelines.

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— the measure should be compatible both with the
(119) In addition, the following conditions must also be met in
objectives and the specific provisions laid down in
line with the TSE guidelines:
Community veterinary and phytosanitary legislation
(point 11.4.4),
— from 1 January 2003, as far as compulsory BSE
— the aid intensity should not exceed 100 % of the
testing of bovine animals slaughtered for human
eligible costs (point 11.4.5).
consumption is concerned, support, including
Community payments, may not be more than
EUR 40 per test (see point 24 of the TSE guidelines),
If the aid is provided under Community and/or national
and/or regional aid schemes, the Commission is to
require evidence that there is no possibility of overcom
— State aid towards the costs of BSE tests must be paid
pensation through the cumulation of measures under
to the operator where the samples for the tests have
different schemes. Where Community aid has been
to be taken. If the aid is paid to laboratories, it must
approved, the date and references of the relevant
be demonstrated that the full amount of State aid
Commission decision should be provided.
paid is passed on to the operator (point 25 of the
TSE guidelines).
(115) As regards the first three conditions, the decision
initiating the formal investigation procedure already
concluded that they had been met (see recital 80 of
(120) As indicated in recitals 115 and 116, the four conditions
that decision). Furthermore, the Belgian authorities
set in the 2000-06 agricultural guidelines have been met.
confirmed this approach in their comments on the
decision initiating the formal investigation procedure.
BSE is a transmissible disease and poses a threat to
(121) As regards the condition concerning the maximum
human health. It is an animal disease of which a
amount of EUR 40 per test, the Commission notes that
primary outbreak must be notified directly to the
this limit was exceeded between 1 January 2003 and
Commission and other Member States
( 42 ). The
30 June 2004. According to the information provided
objective of the aid measure is to control BSE by
by Belgium, the total amount of the excess payments
testing slaughtered animals and fallen stock. Compen
during this period was EUR 6 619 810,74. From 1 July
sating the costs of farmers should ensure that the
2004, the total cost of the test was below EUR 40 (see
measures are actually implemented. All the measures
recital 64). The Belgian authorities have indicated that
arise under, or are recommended by, Community
these amounts covered both national and Community
law ( 43 ).
payments (see recital 58).
(116) As regards the fourth condition, the information
provided by Belgium refers to financing of BSE tests
(122) As regards the requirement that the aid must be paid to
with a cost varying between EUR
111,81 and
the operator where the samples for the test are taken or
EUR 63,45 during this period (see recital 56). This
that, if the aid is paid to laboratories, it must be demon
covers the cost of the laboratory analysis, the cost of
strated that the full amount of State aid is passed on to
having a sample taken by a vet and the cost of the
the operator (point 25 of the TSE guidelines), the
test kit. The Commission is of the opinion that these
Commission concludes that this requirement has been
costs are in line with those mentioned in point 11.4.5
met.
of the 2000-06 agricultural guidelines, which include
health checks, tests and other screening measures
among the actual costs incurred.
(123) As indicated in the decision initiating the formal investi
gation procedure, the Belgian authorities stated that the
costs of BSE tests are paid directly to the laboratories.
(117) In conclusion, the aid granted in the period from
Operators do not have to pay any laboratory costs for
1 January 2001 to 31 December 2002 is compatible.
BSE tests on bovine animals. This appraisal is in line with
what was decided for the similar system in recital 95 of
decision N 9/05 and N 10/05. As already stated, the only
5.4.2. Period from 1 January 2003 to 31 December 2005:
cost passed on to producers is the fee (see recital 93 et
application of point 21 et seq. of the TSE guidelines
seq.), but this part of the financing of the BSE test does
not constitute aid. Consequently, the full amount of the
(118) In accordance with point 23 of the TSE guidelines, the
aid is passed on to the operator.
Commission decided to continue to approve aid of up to
100 % of the costs of BSE tests meeting the principles set
out in point 11.4 of the 2000-06 agriculture guidelines
(see recital 114).
5.4.3. From 1 January 2006
(124) For the period after 1 January 2006, the Commission
( 42 ) Council Directive 82/894/EEC of 21 December 1982 on the notifi
refers to decision N 9/05 and N 10/05, as it is not the
cation of animal diseases within the Community (OJ L 378,
31.12.1982, p. 58).
purpose of this Decision to go back over the aid
( 43 ) See Regulation (EC) No 999/2001.
approved there.

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5.4.4. Conclusion
not meet the above requirements and cannot be
considered recovery as provided for in Article 14 of
(125) To conclude, the aid granted to finance BSE tests in
Regulation (EC) No 659/1999.
excess of EUR 40 per test during the period from
1 January 2003 to 30 June 2004, which amounts to
EUR 6 619 810,74 in total, is incompatible with the
internal market.
6. CONCLUSIONS
(130) The Commission concludes that financing BSE tests
through fees does not constitute aid.
5.5. Repayment of prefinanced budget
(126) As mentioned above, the tests were financed from State
resources over and above the limit of EUR 40 per test
during the period from 1 January 2003 to 30 June 2004.
(131) The Commission concludes that financing BSE tests from
State resources constitutes aid for farmers, slaughter
houses and other entities that process, handle, sell or
trade in bovine animal products that are subject to
compulsory BSE testing under the applicable legislation.
(127) Belgium decided to start repaying this excess from the
This aid is compatible for the period from 1 January
contributions levied to finance the FASFC from 1 January
2001 to 31 December 2002 and from 1 July 2004 to
2006, initially spread over a period of 15 years, but this
31 December 2005. It is incompatible for the period
was subsequently abandoned. According to the Belgian
from 1 January 2003 to 30 June 2004. The incompatible
authorities, the reason for this global approach is that, in
portion of the aid consists of the amount in excess of
practice, it was difficult to enforce recovery on an indi
EUR 40 per test and has been assessed by Belgium as
vidual basis, as some operators had died or ceased
EUR 6 619 810,74.
operating.
(132) The Commission notes that Belgium unlawfully imple
(128) In a subsequent letter dated 6 April 2011, the Belgian
mented aid to finance BSE tests in breach of
authorities indicated that the FASFC had started
Article 108(3) of the TFEU during the period from
repayment using FASFC resources in 2005-06.
1 January 2001 to 30 June 2004. From 1 January
2003, the aid was covered by an exemption regulation,
but as the conditions of the exemption regulation were
not complied with, the aid is unlawful.
(129) However, the recovery system proposed does not meet
the requirements for the recovery of unlawful and
incompatible aid. Under case law, the purpose of
recovery is to re-establish the situation that existed on
(133) The unlawful and incompatible aid exceeding the
the market prior to the granting of the aid. The objective
maximum amount of EUR 40 per test must be recovered,
of re-establishing the previously existing situation is
with the exception of aid granted to specific projects
achieved once the unlawful and incompatible aid is
which, at the time the aid was granted, met all the
repaid by the recipient, who thereby forfeits the
conditions set in the applicable de minimis Regulation,
advantage which he enjoyed over his competitors in
the market, and the situation as it existed prior to the
granting of the aid is restored ( 44 ). The aid to be
recovered includes interest, at an appropriate rate fixed
by the Commission, from the date on which the unlawful
HAS ADOPTED THIS DECISION:
aid was placed at the disposal of the beneficiary until the
date of its recovery ( 45 ). Under Commission Regulation
(EC) No 794/2004 of 21 April 2004 implementing
Council Regulation (EC) No 659/1999 laying down
Article 1
detailed rules for the application of Article 93 of the
EC Treaty
( 46 ), interest must be calculated on a
1. The
measures
financed
through
fees
do
not
constitute
aid.
compound basis, which is not the case here.
Furthermore, Article 14 of Regulation (EC) No 659/1999
stipulates that Member States must take all necessary
measures to ensure the immediate and effective
execution of the Commission’s decision. Recovery as
2. For
the
period
from
1
January
2001
to
31
December
proposed and partially implemented by Belgium does
2002 and for the period from 1 July 2004 to 31 December
2005, financing of BSE tests from State resources constitutes aid
compatible with the internal market for farmers, slaughter
( 44 ) Judgment of the Court of 4 April 1995 in Case C-348/93
houses and other entities that process, handle, sell or trade in
Commission v Italy [1995] ECR I-673, paragraph 27.
( 45 ) Article 14 of Regulation (EC) No 659/1999.
bovine animal products that are subject to compulsory BSE
( 46 ) OJ L 140, 30.4.2004, p. 1.
testing.

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3. For
the
period
from
1
January
2003
to
30
June
2004,
Article 4
financing of BSE tests from State resources constitutes aid
compatible with the internal market for farmers, slaughter
1. Within
2
months
of
notification
of
this
Decision,
Belgium
houses and other entities that process, handle, sell or trade in
shall submit the following information to the Commission:
bovine animal products that are subject to compulsory BSE
testing for amounts of up to EUR 40 per test. Amounts in
excess of EUR 40 per test are incompatible with the internal
market and must be recovered, with the exception of aid
(a) a list of beneficiaries who received the aid referred to in
granted to specific projects which, at the time the aid was
Article 1(3) and (4) and the total amount of aid received by
granted, met all the conditions set in the applicable de
each one;
minimis Regulation.
(b) the total amount (principal and recovery interest) to be
recovered from the beneficiaries;
4. Belgium
unlawfully
implemented
aid
to
finance
BSE
tests
in breach of Article 108(3) of the TFEU during the period from
1 January 2001 to 30 June 2004.
(c) a detailed description of the measures already taken or
planned to comply with this Decision;
Article 2
1. Belgium
shall
take
all
necessary
measures
to
recover
the (d) documents demonstrating that orders to return the aid have
unlawful and incompatible aid referred to in Article 1(3) and (4)
been sent to the beneficiaries.
from its beneficiaries.
2. Belgium
shall
keep
the
Commission
informed
of
the
2. The
aid
to
be
recovered
shall
include
interest
calculated progress of the national measures taken to implement this
from the date on which it was placed at the disposal of the
Decision until recovery of the aid referred to in Article 1(3)
beneficiaries until the date of its recovery.
and (4) has been completed.
3. After
the
2-month
period
referred
to
in
paragraph
1,
3. The
interest
shall
be
calculated
on
a
compound
basis
in Belgium shall submit, at the Commission’s request, a report
accordance with Chapter V of Regulation (EC) No 794/2004.
on the measures already taken and those planned to comply
with this Decision. That report shall also provide detailed
information concerning the amounts of aid and recovery
interest already recovered from the beneficiaries.
4. Recovery
shall
be
effected
without
delay
in
accordance
with the procedures provided for in national law, provided
that they allow the immediate and effective execution of this
Decision.
Article 5
This Decision is addressed to the Kingdom of Belgium.
Article 3
Recovery of the aid referred to in Article 1(3) and (4) shall be
Done at Brussels, 27 July 2011.
immediate and effective.
For the Commission
Belgium shall ensure that this Decision is implemented within 4
Dacian CIOLO
months of the date of its notification.
Member of the Commission

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