# Conclusions

((Transport – Regional passenger transport services – State aid – Subsidies to offset the cost of pubic service obligations))

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72
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73
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80
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81
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82
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83
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84
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144
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145
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146
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147
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148
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1 –
: Original language: French.

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2 –
: OJ, English Special Edition 1969 (I), p. 276.

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3 –
: OJ 1991 L 169, p. 1.

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4 –
: First recital of Regulation No 1191/69.

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5 –
: Ibid., second recital.

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6 –
: Ibid., 10th and 13th recitals.

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7 –
: These three categories of obligation are, in turn, defined in paragraphs 3 to 5 of Article 2 of Regulation No 1191/69.

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8 –
: Paragraphs 1(1) and 2(1) of the PBefG.

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9 –
: Order for reference, p. 10.

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10 –
: BGBl. I, 1992, p. 1442.

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11 –
: Paragraph 6(116) of the Eisenbahnneuordnungsgesetz of 27 December 1993 (BGBl. I, 1993, p. 2378).

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12 –
: First sentence of Paragraph 8(4) of the PBefG.

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13 –
: Second sentence of Paragraph 8(4) of the PBefG.

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14 –
: Third sentence of Paragraph 8(4) of the PBefG.

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15 –
: The Regierungspräsidium.

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16 –
: English translation (pp. 11 to 13).

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17 –
: English translation (p. 15).

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18 –
: First limb of the question for a preliminary ruling.

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19 –
: Second limb of the question for a preliminary ruling.

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20 –
: See the text of the question for a preliminary ruling and the third limb of that question.

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21 –
: It should be noted that under the second subparagraph of Article 1(1) of the Regulation
  Member States may exclude from the scope of this Regulation any undertakings whose activities are confined exclusively to
  the operation of urban, suburban or regional services.

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22 –
: See, in particular, the reply of the German Government to the Court's written question. It should be noted that, with the
  exception of that reply, the German Government has not submitted any written or oral observations to the Court.

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23 –
: Cited above.

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24 –
: During the oral procedure, the Commission contended that Regulation No 1191/69 provided for
  optional harmonisation in the sector. Member States wishing to impose public service obligations were free to decide whether or not
  to apply the Regulation. The Commission did not state whether its contention was concerned solely with transport referred
  to in the second subparagraph of Article 1(1) of the Regulation or whether it covered all transport within the scope of application
  of the Regulation. In the latter case, I consider that the Commission's contention would be contrary to the objectives of
  Regulation No 1191/69. That Regulation seeks to eliminate the disparities arising out of public service obligations which
  the Member States impose on transport undertakings and which are capable of distorting competition (see the first recital
  of the Regulation and Council Decision 65/271/EEC of 13 May 1965 on the harmonisation of certain provisions affecting competition
  in transport by rail, road and inland waterway (OJ, English Special Edition 1965-1966, p. 67)). The attainment of those objectives
  would be seriously compromised if, for transport coming within the scope of the Regulation, Member States were able to impose
  public service obligations without regard to the provisions of the Regulation. If that were the case, they would reintroduce
  the distortions in competition which the Regulation specifically seeks to eliminate. Moreover, it would be difficult to reconcile
  the Commission's contention with the 15th recital of the Regulation which provides:
  [w]hereas the provisions of this Regulation should be applied to any new public obligation as defined in this Regulation imposed
  on a transport undertaking. Finally, the Commission's contention would be contrary to Article 189 of the EC Treaty (now Article 249 EC) as that provides
  that regulations are
  binding in their entirety and are directly applicable in all Member States.

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25 –
: Written Question P-381/95 (OJ 1995 C 270, p. 2).

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26 –
: Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover
  taxes ─ Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, hereinafter the
  Sixth Directive).

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27 –
: Case C-136/97
  Norbury Developments [1999] ECR I-2491.

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28 –
: Ibid., paragraphs 19 and 20.

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29 –
: Accordingly, the Court upheld the reasoning proposed by Advocate General Gulmann in Case C-74/91
  Commission v
  Germany [1992] ECR I-5437, paragraph 21 and by Advocate General Fennelly in
  Norbury Developments , cited above, paragraph 32.

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30 –
: Case C-345/99 [2001] ECR I-4493.

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31 –
: Ibid., paragraphs 22 to 24.

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32 –
: Case C-40/00
  Commission v
  France [2001] ECR I-4539, paragraph 17.

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33 –
: Ibid., paragraphs 18 and 19.

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34 –
: The second subparagraph of Article 1(1) of Regulation No 1191/69 entered into force on 1 July 1992, pursuant to Article 2
  of Regulation No 1893/91.

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35 –
: See paragraphs 16 to 19 of this Opinion.

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36 –
: Twentieth recital of Regulation No 1191/69. It was envisaged that the Council would determine, within a time-limit of three
  years, the action to be taken in respect of public service obligations for local and regional transport services.

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37 –
: The second subparagraph of Article 1(1) was inserted into Regulation No 1191/69 by Regulation No 1893/91, which entered into
  force on 1 July 1992.

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38 –
: Proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service
  requirements and the award of public service contracts in passenger transport by rail, road and inland waterway (OJ 2000 C
  365 E, p. 169).

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39 –
: Ibid., Article 1.

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40 –
: First limb of the question for a preliminary ruling.

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41 –
: Ibid.

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42 –
: Case C-53/00
  Ferring [2001] ECR I-9067 (hereinafter
  the
  Ferring judgment).

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43 –
: See, in particular,
  Droit de la concurrence dans les Communautés européennes, Volume IIB, Explication des règles applicables aux aides d'État , 1997, p. 7, http://www.europa.eu.int/comm/competition/state_aid/legislation/vol2b_fr.pdf. See also the references cited
  by Advocate General Tizzano in his Opinion in the
  Ferring case, paragraph 56.

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44 –
: Case T-106/95
  FFSA and Others v
  Commission [1997] ECR II-229.

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45 –
: Paragraphs 167, 168 and 172.

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46 –
: Paragraphs 170 to 194.

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47 –
: Case T-46/97 [2000] ECR II-2125.

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48 –
: Paragraph 84.

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49 –
: Paragraph 83.

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50 –
: Ibid.

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51 –
: . Ferring judgment (paragraph 18).

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52 –
: Ibid., paragraph 27.

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53 –
: Ibid., paragraph 19.

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54 –
: Ibid., paragraph 21.

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55 –
: Ibid., paragraph 23.

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56 –
: Ibid., paragraph 27.

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57 –
: Ibid., paragraph 32.

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58 –
: Ibid., paragraph 33.

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59 –
: Only those exceptions relevant to the present case are referred to here.

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60 –
: See,
  inter alia , Case 173/73
  Italy v
  Commission [1974] ECR 709, paragraph 26.

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61 –
: See, in particular,
  Italy v
  Commission , cited above, paragraph 27; Case 310/85
  Deufil v
  Commission [1987] ECR 901, paragraph 8; Case C-56/93
  Belgium v
  Commission [1996] ECR I-723, paragraph 79 and Case C-241/94
  France v
  Commission [1996] ECR I-4551, paragraph 20.

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62 –
: See, in particular,
  Italy v
  Commission , cited above, paragraph 28.

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63 –
: See, in particular, Case C-241/94
  France v
  Commission , cited above, paragraph 21 and Case C-251/97
  France v
  Commission [1999] ECR I-6639, paragraph 37.

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64 –
: See, in particular,
  Deufil v
  Commission , cited above, paragraph 8.

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65 –
: Cited above, paragraph 83.

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66 –
: See, in that sense, Lehman, H.,
  Les aides accordées par les États,
  Union européenne, Communauté européenne, Commentaire article par article des traités UE et CE, eds. Léger, P., Helbing & Lichtenhahn, Dalloz, Bruylant, Bâle, Paris, Bruxelles, 2000 (pp. 802 and 803).

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67 –
: . Ferring (paragraphs 18 to 22).

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68 –
: Ibid., paragraphs 23 to 27.

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69 –
: See also the Opinion of Advocate General Tizzano in
  Ferring , who examined
  whether the contested measure
  is justified by the fact that it is intended to offset the inappropriate public service obligations imposed on wholesale distributors (paragraph 50, emphasis added).

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70 –
: Communication 2001/C 17/04 of the Commission on public interest service in Europe (OJ 2001 C 17, p. 4, paragraph 19).

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71 –
: See, in particular, Cases C-202/88
  France v
  Commission [1991] ECR I-1223, paragraph 12 and C-67/96
  Albany [1999] ECR I-5751, paragraph 103.

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72 –
: . Ferring , paragraph 27.

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73 –
: Ibid., paragraph 32.

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74 –
: See also, in that sense, Aussant, J, Fornasier, R., Louis, J.-V., Séché, J.-C., Van Raepenbusch, S.,
  Commentaire J. Megret, Le droit de la CEE, volume 3, Libre circulation des personnes, des services et des capitaux, Transports, éditions de l'université de Bruxelles, Bruxelles, 1990, 2nd ed. (p. 226), and Communication 2001/C 17/04, cited above, paragraph 26.

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75 –
: Article 77 of the Treaty provides that
  aids shall be compatible with this Treaty ... if they represent reimbursement for the discharge of certain obligations inherent
  in the concept of a public service. At this point, it may already be noted that the rule in
  Ferring is difficult to reconcile with the wording of that provision. Had the authors of the Treaty considered that the subsidies
  provided to offset the cost of public service obligations were not aid within the meaning of Article 92(1), they would probably
  not have deemed it appropriate to insert an express provision declaring them compatible with the Treaty. It therefore seems
  that, contrary to the principle raised in the
  Ferring judgment, the intention of the authors of the Treaty was to bring aid to offset the cost of public service obligations within
  the scope of the prohibition contained in Article 92(1) of the Treaty, even where that aid does not exceed the costs incurred
  by the performance of public service obligations.

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76 –
: OJ, English Special Edition 1970 (II), p. 360.

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77 –
: Fifth recital of Regulation No 1107/70.

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78 –
: The same argument applies,
  mutatis mutandis , to the derogations provided for in Article 92(3) of the Treaty.

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79 –
: For a more detailed description of the those conditions, see my Opinion in Case C-309/99
  Wouters and Others [2002] ECR I-1582, paragraphs 157 to 166.

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80 –
: Cases 127/73
  BRT and SABAM (
  BRT II) [1974] ECR 313, paragraph 20 and 66/86
  Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraph 55. See also, on this point, Communication 2001/C 17/04, cited above, paragraph 22.

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81 –
: Cases C-179/90
  Merci convenzionali porto di Genova [1991] ECR I-5889, paragraph 27; C-242/95
  GT-Link [1997] ECR I-4449, paragraphs 52 and 53 and C-266/96
  Corsica Ferries France [1998] ECR I-3949, paragraph 45.

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82 –
: See my Opinion in
  Wouters and Others , cited above, paragraph 164.

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83 –
: Cases C-320/91
  Corbeau [1993] ECR I-2533, paragraph 14 and C-393/92
  Almelo [1994] ECR I-1477, paragraph 49.

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84 –
: See, in that sense, the Opinion of Advocate General Rozès in Case 78/82
  Commission v
  Italy [1983] ECR 1955, point VI-C and of Advocate General Cosmas in Cases C-157/94
  Commission v
  Netherlands [1997] ECR I-5699, C-158/94
  Commission v
  Italy [1997] ECR I-5789; C-159/94
  Commission v
  France [1997] ECR I-5815 and C-160/94
  Commission v
  Spain [1997] ECR I-5851 (paragraph 126).

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85 –
: . Ferring , paragraph 23.

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86 –
: Ibid., paragraph 27.

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87 –
: Case C-159/94
  Commission v
  France , cited above, paragraph 68.

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88 –
: Ibid., paragraphs 69 and 70.

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89 –
: Paragraph 27.

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90 –
: See, for example, Commission Decision 2001/892/EC of 25 July 2001 relating to a proceeding under Article 82 of the EC Treaty
  (COMP/C-1/36.915 ─ Deutsche Post AG ─ Interception of cross-border mail) (OJ 2001 L 331, p. 40, paragraph 186).

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91 –
: Cases C-354/90
  Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs
  de saumon [1991] ECR I-5505, paragraph 14 and C-44/93
  Namur-Les assurances du crédit [1994] ECR I-3829, paragraph 17.

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92 –
: Case 78/76
  Steinike & Weinlig [1977] ECR 595, paragraph 9.

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93 –
: Case C-387/92
  Banco Exterior de España [1994] ECR I-877, paragraph 17.

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94 –
: Case C-332/98
  France v
  Commission [2000] ECR I-4833.

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95 –
: Ibid., paragraphs 27 to 32.

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96 –
: Joined Cases 188/80 to 190/80
  France, Italy and United Kingdom v
  Commission [1982] ECR 2545, paragraphs 12 and 13.

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97 –
: The
  decisions and
  directives referred to in Article 90(3) of the Treaty belong to the general category of decisions and directives provided for in Article
  189 of the Treaty. They are therefore binding on the Member States (Case 226/87
  Commission v
  Greece [1988] ECR 3611, paragraphs 11 and 12).

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98 –
: Joined Cases C-48/90 and C-66/90
  Netherlands and Others v
  Commission [1992] ECR I-565, paragraph 29.

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99 –
: It is true that, by virtue of
  Ferring , measures which
  overcompensate the cost of public service obligations must be notified to the Commission. However, it seems that that obligation will rapidly
  become theoretical since, under the terms of the
  Ferring judgment (paragraph 32), the portion of aid which exceeds the cost of the public service obligations cannot, in any event,
  be justified with regard to Article 90(2) of the Treaty.

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100 –
: See, for example, Commission Communication 96/C 281/03 on services of general interest in Europe (OJ 1996 C 281, p. 3) and
  Communication 2001/C 17/04, cited above.

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101 –
: Report presented by the Commission to the Laeken European Council of 17 October 2001 on services of general interest [COM
  (2001) 598 final, paragraph 5]. It will be noted that, in the spirit of the Nice European Council, it is clear that State
  measures intended to offset the cost of public service obligations with regard to undertakings constitute State aids within
  the meaning of Article 92(1) of the Treaty, which may be justified under the provisions of Article 90(2) of the Treaty.

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102 –
: Ibid.

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103 –
: Ibid., paragraph 14.

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104 –
: Ibid., paragraph 15.

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105 –
: Ibid., paragraph 27.

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106 –
: See, in particular, Cases 30/59
  De Gezamenlijke Steenkolenmijnen in Limburg v
  High Authority [1961] ECR 1, paragraph 39;
  Banco Exterior de España , cited above, paragraph 13; Case C-241/94
  France v
  Commission , cited above, paragraph 34 and C-256/97
  DM Transport [1999] ECR I-3913, paragraph 19.

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107 –
: Cases C-39/94
  SFEI and Others [1996] ECR I-3547, paragraph 60; C-342/96
  Spain v
  Commission [1999] ECR I-2459, paragraph 41 and
  DM Transport , cited above, paragraph 22.

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108 –
: Written observations of NVGA.

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109 –
: Ibid.

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110 –
: See the written observations of the Regierungspräsidium (p. 3) and the written observations of Altmark (paragraph 35).

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111 –
: As regards that requirement, see in particular Case C-241/94
  France v
  Commission , cited above, paragraph 24; Case C-200/97
  Ecotrade [1998] ECR I-7907, paragraphs 40 and 41 and Case C-75/97
  Belgium v
  Commission [1999] ECR I-3671, paragraph 26.

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112 –
: On the concept of
  State aid, see in particular Case 82/77
  Van Tiggele [1978] ECR 25, paragraphs 23 to 25; Joined Cases 213/81 to 215/81
  Norddeutsches Vieh- und Fleischkontor Will and Others [1982] ECR 3583, paragraph 22; Joined Cases C-72/91 and C-73/91
  Sloman Neptun [1993] ECR I-887, paragraphs 19 and 21; Case C-189/91
  Kirsammer-Hack [1993] ECR I-6185, paragraph 16 and Joined Cases C-52/97 to C-54/97
  Viscido and Others [1998] ECR I-2629, paragraph 13.

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113 –
: Case 248/84
  Germany v
  Commission [1987] ECR 4013, paragraph 17.

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114 –
: Keppenne, J.-P.,
  Guide des aides d'État en droit communautaire , Bruylant, Bruxelles, 1999, paragraph 150.

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115 –
: Cases 730/79
  Phillip Morris Holland v
  Commission [1980] ECR 2671, paragraph 11 and 295/85
  France v
  Commission [1987] ECR 4393, paragraph 24.

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116 –
: Opinion of Advocate General Capotorti in
  Phillip Morris Holland v
  Commission , cited above, p. 2698.

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117 –
: See the order for reference (English translation pp. 4 and 5).

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118 –
: First sentence of the first limb of the question for a preliminary ruling.

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119 –
: Second sentence of the first limb of the question for a preliminary ruling.

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120 –
: Paragraphs 36 and 37.

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121 –
: Pp. 5 to 7.

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122 –
: Opinion of Advocate General Jacobs in Joined Cases C-278/92 to C-280/92
  Spain v
  Commission [1994] ECR I-4103, paragraph 33.

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123 –
: . Phillip Morris Holland v
  Commission , cited above, paragraph 11.

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124 –
: Cases 102/87
  France v
  Commission [1988] ECR 4067, paragraph 19; C-303/88
  Italy v
  Commission [1991] ECR I-1433, paragraph 27, and Joined Cases C-278/92 to C-280/92
  Spain v
  Commission , cited above, paragraph 40.

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125 –
: Joined Cases T-447/93, T-448/93 and T-449/93
  AITEC and Others v
  Commission [1995] ECR II-1971, paragraphs 139 to 141.

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126 –
: Paragraphs 4 to 9.

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127 –
: That aspect is confirmed by the preamble to the proposal for a Regulation 2000/C 365 E/10, cited above. Paragraph 5 of the
  statement of reasons given for that document states:
  In light of ... the application of Community rules on the freedom of establishment, and the application of Community public
  procurement rules, significant progress had been made towards Community ... -wide market access in public transport. As a
  result, trade between Member States has substantially developed and several public transport operators are now providing services
  in more than one Member State.

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128 –
: Case C-142/87
  Belgium v
  Commission (
  Tubemeuse ) [1990] ECR I-959, paragraph 43.

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129 –
: See also,
  inter alia , Joined Cases C-278/92 to C-280/92
  Spain v
  Commission , cited above, paragraph 42 and Case T-214/95
  Vlaams Gewest v
  Commission [1998] ECR II-717, paragraph 48.

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130 –
: . Tubemeuse , cited above, paragraphs 42 and 43.

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131 –
: OJ 1996 C 68, p. 9.

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132 –
: Ibid., fourth paragraph.

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133 –
: Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to
  de minimis aid (OJ 2001 L 10, p. 30).

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134 –
: Ibid., paragraph 3 of the explanatory memorandum.

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135 –
: See paragraph 84 of the present Opinion.

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136 –
: Conversely, the parties to the main proceedings consider that Article 77 of the Treaty is too vague to be applied outside
  those cases referred to in the secondary legislation. In that respect, they base their argument on the majority opinion obtaining
  in German legal theory (see the written observations of the Regierungspräsidium and the written observations of Altmark, paragraph
  54).

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137 –
: Council Regulation (EEC) No 1192/69 of 26 June 1969 on common rules for the normalisation of the accounts of railway undertakings
  (OJ, English Special Edition 1969 (I), p. 0283).

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138 –
: Fourth recital of Regulation No 1107/70.

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139 –
: Ibid., fifth recital.

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140 –
: Emphasis added.

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141 –
: Case 156/77
  Commission v
  Belgium [1978] ECR 1881, paragraph 10.

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142 –
: . Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et tranformateurs
  de saumon , cited above, paragraph 12 and
  SFEI and Others , cited above, paragraph 40.

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143 –
: For a more detailed description of those inferences, see my Opinion delivered on 6 December 2001 in Case C-197/99 P
  Belgium v
  Commission (case pending before the Court (paragraph 74)).

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144 –
: . Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et tranformateurs
  de saumon , cited above, paragraphs 12 and 13 and
  SFEI and Others , cited above, paragraphs 40 and 43.

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145 –
: Ibid.

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146 –
: See, in that sense, Keppenne, J.-P., cited above, paragraph 408, and Frignani, A.,
  Commentaire J. Megret, Le droit de la CE, volume 4, Concurrence, éditions de l'université de Bruxelles, Bruxelles, 1997, 2nd ed., paragraph 319.

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147 –
: See the Opinion of Advocate General Tesauro in
  Tubemeuse , cited above, ECR I-985.

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148 –
: See the Opinion of Advocate General Jacobs in
  SFEI and Others , cited above, paragraph 77.