Keywords
Summary

Keywords

1. State aid — Definition — Measures intended to compensate for the cost of public-service duties carried out by an undertaking — Excluded — Conditions — Clearly defined public-service obligations — Establishment in an objective and transparent manner of the parameters for calculating the compensation — Compensation limited to cost — Unlawfulness of the measure allocating part of the charge to a public undertaking — Unlawfulness affecting only that part of the charge paid to the undertaking — (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC))

2. State aid — Planned aid — Prohibition of implementation before the Commission ' s final decision — Direct effect — Extent — Unnotified measure allocating to an undertaking part of a charge — Responsibility of the national courts to prevent the levying of the charge and the allocation of the revenue therefrom — (EC Treaty, Art. 93(3) (now Art. 88(3) EC))

3. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Article 30 of the Treaty (now, after amendment, Article 28 EC) — Scope — Charge not constituting an impediment prohibited by Articles 12 or 95 of the Treaty (now, after amendment, Article 25 EC or Article 90 EC) — Charge automatically falling within the ambit of Article 30 of the Treaty — Excluded — (EC Treaty, Arts 12, 30 and 95 (now, after amendment, Arts 25, 28 and 90 EC))

4. Tax provisions — Internal taxation — Port charges allocated to a public undertaking regardless of the service rendered by the latter — No discrimination against imported goods — Permissible — (EC Treaty, Arts 12, 30 and 95 (now, after amendment, Arts 25, 28 and 90 EC))

Summary

1. The allocating by a Member State to a public undertaking of a significant proportion of charges, such as those levied in a port on all loading and unloading of goods, and the levying of those charges on the users, must be classified as State aid within the meaning of Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC) in so far as they affect trade between Member States, if they are not linked to clearly defined public-service duties, and/or the compensation allegedly necessary in order for those duties to be performed has not been calculated on the basis of parameters established in advance in an objective and transparent manner, so as to prevent that compensation from conferring an economic advantage which might favour the recipient undertaking over competing undertakings. For that not to be the case, that compensation must not exceed what is necessary to cover all or part of the costs incurred in the discharge of public-service obligations, taking into account the relevant receipts and a reasonable profit.

None the less, the fact that the collection and allocation of a proportion of the charges, namely, the proportion paid to the public undertaking, may be unlawful, does not affect the rest of the charges paid into the public exchequer.

see paras 31-32, 35, 39-40, 47, operative part 1

2. As a result of the direct effect which the last sentence of Article 93(3) of the Treaty (now Article 88(3) EC) has been held to have, the immediate enforceability of the prohibition on implementation referred to in that article extends to all aid which has been implemented without being notified. It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all measures necessary, under national law, to prevent both the allocation of a proportion of the charges to the recipient undertakings and the collection of that proportion.

see paras 42, 47, operative part 1

3. The scope of Article 30 of the Treaty (now, after amendment, Article 28 EC) does not include provisions of the Treaty relating to charges having effect equivalent to customs duties (Article 12 of the Treaty (now, after amendment, Article 25 EC)) and Article 16 of the Treaty (repealed by the Treaty of Amsterdam) or relating to discriminatory internal taxation (Article 95 of the Treaty (now, after amendment, Article 90 EC)). It follows that if charges, such as those collected in a port on all loading and unloading of goods, fall within the scope of Article 12 or Article 95 of the Treaty, it is one or other of those provisions that will apply and not Article 30 of the Treaty. If those charges should prove not to constitute an impediment prohibited by Article 12 or 95, the result would not be that they automatically fell within the ambit of Article 30.

see paras 56, 58

4. In the absence of any unequal treatment discriminating against goods from other Member States, a measure by virtue of which a Member State provides for the collection of internal taxation, such as port charges on the loading and unloading of goods, and the allocation of a significant proportion thereof to a public undertaking, when the sum so allocated corresponds to a service actually provided by that undertaking, does not infringe Article 95 of the Treaty (now, after amendment, Article 90 EC).

see para. 62, operative part 2