Keywords
Summary

Keywords

1. Preliminary rulings – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context

(Art. 234 EC; Statute of the Court of Justice, Art. 23)

2. Preliminary rulings – Jurisdiction of the Court – Limits

(Arts 88 EC and 234 EC)

3. Competition – Community rules – Undertaking – Meaning

4. State aid – Definition

(Art. 87(1), EC)

5. State aid – Definition

(Art. 87(1), EC)

Summary

1. The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Thus, the information provided in the order for reference must not only enable the Court to reply usefully but must also give the governments of the Member States and the other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties. It is, furthermore, essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute.

(see paras 17-18, 21)

2. The assessment of the compatibility of aid measures or of an aid scheme with the common market falls within the exclusive competence of the Commission, subject to review by the Court. Consequently, a national court or tribunal may not, in a reference for a preliminary ruling under Article 234 EC, ask the Court for guidance as to the compatibility with the common market of a given State aid or an aid scheme. However, although it is not the Court’s task, in proceedings brought under Article 234 EC, to rule upon the compatibility of provisions of domestic law with Community law or to interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it.

(see paras 23-24)

3. In the field of competition law, the concept of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. Any activity consisting in offering goods and services on a given market is an economic activity. In that regard, first, the mode of funding is not relevant and, second, the fact that a body is entrusted with some public interest tasks does not prevent the activities at issue from being regarded as economic activities.

(see paras 28-29, 33-34)

4. Classification as aid requires that all the conditions set out in Article 87(1) EC are fulfilled. Thus, first, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.

The concept of aid embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect.

(see paras 38-39, 42)

5. National provisions, whereby members of a company controlled by the State may, in derogation from the general law, withdraw from that company on condition that they relinquish all claims over that company’s assets, are not liable to be considered to be State aid for the purposes of Article 87 EC.

(see para. 51)