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Opinion of the Committee of the Regions on the Draft Commission decision on the application of Article 86 of the Treaty to state aid in the form of public service compensation, the draft directive amending Commission Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings and the draft Community framework for state aid in the form of public service compensation

(2005/C 43/05)

THE COMMITTEE OF THE REGIONS

Having regard to the draft Commission decision on the application of Article 86 of the Treaty to state aid in the form of public service compensation, the draft directive amending Commission Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings and the Community framework for state aid in the form of public service compensation,

Having regard to the letter sent by Mario Monti, member of the European Commission responsible for competition policy, on 19 March 2004 requesting the opinion of the Committee under the first paragraph of Article 265 of the EC Treaty,

Having regard to the decision of its president of 26 May 2004 to instruct the Commission for Economic and Social Policy to draw up an opinion on the subject,

Having regard to Article 16 of the EC Treaty concerning services of general economic interest as well as Articles 2, 5, 73, 81, 86, 87, 88 and 295 of the Treaty,

Having regard to Article 36 of the European Charter of Fundamental Rights concerning access to services of general economic interest,

Having regard to Article III-6 of the draft European Constitution,

Having regard to the White Paper on services of general interest (COM (2004) 374 final),

Having regard to the judgment of the Court of Justice of the European Communities (hereinafter referred to as the CJEC) of 24 July 2003 in case C-280/00 (Altmark Trans),

Having regard to its opinion of 20 November 2003 on the Green Paper on services of general interest (COM (2003) 270 final, CdR 149/2003 fin) (1),

Having regard to its opinion on the Communication from the Commission on services of general interest in Europe (COM (2000) 580 final – CdR 470/2000 fin) (2),

Having regard to the draft opinion (CdR 155/2004 rev. 1) adopted on 6 July 2004 by the Commission for Economic and Social Policy (rapporteur: Mr Claudio Martini, President of the Region of Tuscany (IT-PES)),

Whereas, according to the Altmark Trans judgement, compensation awarded for the provision of services of general interest does not constitute state aid and is therefore subject neither to the prior notification obligation nor to the approval of the Commission, provided four conditions are met:

Whereas the CJEC stated, inter alia, that, notwithstanding the further criteria listed in the Altmark Trans judgement, compensation does in any case not represent a notifiable type of state aid if the recipient is selected as part of an open and transparent public procurement procedure. In all other cases, the recipient is required to demonstrate that such compensation does not constitute state aid by proving that it received no more than the additional net costs less all receipts as would be incurred for the provision of the service at a reasonable price by any well-run undertaking with adequate personnel,

Whereas according to the Altmark Trans judgement, all other types of compensation fall into the category of state aid and are therefore subject to the rule governing prior notification,

adopted the following opinion unanimously at its 56th plenary session of 29 and 30 September 2004 (meeting of 29 September):

1.   General comments of the Committee of the Regions

On the Altmark Trans judgment

THE COMMITTEE OF THE REGIONS

On the Commission methodology

THE COMMITTEE OF THE REGIONS

On the work of the intergovernmental conference

THE COMMITTEE OF THE REGIONS

2.   Comments on the draft Commission decision on the application of the provisions of Article 86 of the Treaty to state aid in the form of public service compensation

THE COMMITTEE OF THE REGIONS

3.   Comments on the draft Commission Directive amending Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings

THE COMMITTEE OF THE REGIONS

4.   Draft Community framework for state aid in the form of public service compensation

THE COMMITTEE OF THE REGIONS

Brussels, 29 September 2004

The President

of the Committee of the Regions

Peter STRAUB

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(1)OJ C 73, 23.3.2004, p. 7

(2)OJ C 19, 22.1.2002, p. 8

(3)  Cf. opinion of the CoR of 2 July 2003 on the Follow-up to the White Paper on European governance (rapporteur Michel Delebarre (PES/FR): COM(2001) 428 final, COM(2002) 704 final, COM(2002) 705 final, COM(2002) 709 final, COM(2002) 713 final, COM(2002) 718 final, COM(2002) 719 final, COM(2002) 725 final2

(4)  COM(2004) 374 final

(5)  Due to renumbering of the draft constitutional treaty as proposed by the Intergovernmental Conference in document CIG 87/1/04, 13 October 2004, Article III-6 has become Article III-122.

(6)  See Presidency document 76/04 of 13 May 2004.

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