79The applicant disputes the Council's claim that the partial harmonisation of a tax by a measure of secondary Community law necessarily causes the measure to fall outside the scope of the Treaty provisions concerning State aid unless the directive on which that harmonisation is based expressly provides for their application. That interpretation fails to have regard to the hierarchy of norms. If the Council had wanted to exclude the application of Article 87(1) EC, it should have based the Directive not only on Article 93 EC, but also on Article 89 EC and thereby exempt the measures at issue from the procedure for reviewing State aid. Likewise, the Council could have stated that the measures provided for by the Directive were compatible with the common market on the basis of Article 88(2) EC, Article 87(3)(e) EC or possibly Article 73 EC. That would correspond to the practice generally followed by the Council (see, for example, Regulation (EEC) No 1107/70 of the Council of 4 June 1970 on the granting of aids for transport by rail, road and inland waterway (OJ 1970 L 130, p. 1)). Since the Council does not establish any derogation from primary law on the basis of the powers laid down in primary law, it is the primary law which applies, namely, in the present case, Articles 87 EC and 88 EC. The Council's claim that such derogation was in fact envisaged has to be dismissed since that derogation was not expressed clearly and explicitly.
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