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Ferring v ACOSS (ECJ)

Court of Justice of the European Communities
Case C-53/00, Ferring SA v ACOSS
Reference for a preliminary ruling from the Tribunal des affaires de sécurité sociale de Créteil (France)
Judgment of 22 November 2001 (HTML)

State aid; Article 87(1); Article 86(2)

Ferring, a manufacturer of pharmaceutical products, was seeking recovery of amounts paid through a special French tax on direct sales of pharmaceuticals, from which full-line wholesalers were exempt. The argument was that this tax arrangement was an illegal State aid under Article 87.

There were two counter-arguments, both based on the fact that full-line wholesalers were subject to special obligations under French law to maintain a certain level of availability of pharmaceutical products:

The court found that these two arguments were, in the circumstances of the case, equivalent. Thus, there were two possibilities:

Which of these alternatives applied for the particular tax on pharmaceutical sales at issue in the case was for the French tribunal to decide.

This case was decided whilst Altmark was being heard. In Altmark, the court found that, for financing provided through a public service concession contract, the Article 87(1) and Article 86(2) tests were different. Thus it was possible for aid to exist under Article 87(1), if the funding agency had not acted like a market purchaser of public services (for example by tendering for a well-defined contract), but for it to be justified under Article 86(2) if the aid was nevertheless necessary and proportionate to the public service purpose. Ferring tells us that there is no set of circumstances for a general tax measure that would correspond to this possible outcome for a concession contract. This reflects the fact that there is no concept of "market purchaser" or hypothetical tender process that could be applied to the design of a tax measure.

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Last changed by Franck at 11:01 PM on Wednesday 26 October 2005.

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