# C_2008022EN.01003101.xml

| 26.1.2008 | EN | Official Journal of the European Union | C 22/31 |
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26.1.2008

EN

Official Journal of the European Union

C 22/31

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 19 November 2007 — Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others v Council of Ministers and Others

(Case C-504/07)

(2008/C 22/56)

Language of the case: Portugese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Associação Nacional de Transportes Rodoviários de Pesados de Passageiros (Antrop) and Others

Applicant:

Defendant: Council of Ministers and Others

Defendant:

Questions referred

| (a) | In the light of Articles 73, 87 and 88 of the Treaty and of Regulation No 1191/69 (1), may the national authorities impose public service obligations on a public undertaking entrusted with the provision of public passenger transport in a municipality? |
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(a)

In the light of Articles 73, 87 and 88 of the Treaty and of Regulation No 1191/69 (1), may the national authorities impose public service obligations on a public undertaking entrusted with the provision of public passenger transport in a municipality?

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| (b) | If the answer is affirmative, must the national authorities pay compensation in respect of those obligations? |
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(b)

If the answer is affirmative, must the national authorities pay compensation in respect of those obligations?

| (c) | Must the national authorities, where they are not obliged to hold a tendering procedure for the award of a concession for the operation of a transport network, extend the compensation obligation to all the undertakings which are regarded, under domestic law and within the same area, as offering public passenger transport? |
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(c)

Must the national authorities, where they are not obliged to hold a tendering procedure for the award of a concession for the operation of a transport network, extend the compensation obligation to all the undertakings which are regarded, under domestic law and within the same area, as offering public passenger transport?

| (d) | If the answer is affirmative, what criterion must apply to the payment of compensation?' |
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(d)

If the answer is affirmative, what criterion must apply to the payment of compensation?'

| (e) | In the case of undertakings providing passenger transport by bus which, by virtue of a public concession, carry on their activity on an exclusive basis within specified urban districts, but also carry on that activity in competition with private operators outside the urban areas covered by such exclusivity, does the grant by the State, year by year, of aid intended to cover the constant operating deficits of such undertakings amount to State aid prohibited by Article 87(1) EC, where:






  (i) | it is not possible to ascertain on the basis of reliable data from the relevant accounts the difference between the costs imputable to the part of the activity of those undertakings in the area covered by the concession and the corresponding income and consequently it is not possible to calculate the additional cost deriving from the performance of public service obligations which, under the terms of the concession, may attract State aid? |
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(e)

In the case of undertakings providing passenger transport by bus which, by virtue of a public concession, carry on their activity on an exclusive basis within specified urban districts, but also carry on that activity in competition with private operators outside the urban areas covered by such exclusivity, does the grant by the State, year by year, of aid intended to cover the constant operating deficits of such undertakings amount to State aid prohibited by Article 87(1) EC, where:

(i)

it is not possible to ascertain on the basis of reliable data from the relevant accounts the difference between the costs imputable to the part of the activity of those undertakings in the area covered by the concession and the corresponding income and consequently it is not possible to calculate the additional cost deriving from the performance of public service obligations which, under the terms of the concession, may attract State aid?

| (ii) | the supply of transport services by the said undertakings may, as a result, be maintained or increased, which entails the consequence that the opportunities for other undertakings established in this or in another Member State to provide their transport services may be diminished? |
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(ii)

the supply of transport services by the said undertakings may, as a result, be maintained or increased, which entails the consequence that the opportunities for other undertakings established in this or in another Member State to provide their transport services may be diminished?

| (iii) | and notwithstanding the provisions of Article 73 of the Treaty? |
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(iii)

and notwithstanding the provisions of Article 73 of the Treaty?

| (f) | Having regard to the conditions which the Court of Justice lays down regarding the present Article 87(1) (formerly 92(1)), in particular in its judgment of 24 July 2003 in Case C-280/00 Altmark
   (2), for classification of State aid (‘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.’), what is the meaning and scope of the expressions (i) conferring of an advantage (ii) which distorts competition, in a situation in which the beneficiaries have exclusive rights for public passenger transport services in the cities of Lisbon and Oporto but also operate links to those cities, in areas where other operators are also active? In other words, what criteria must we apply in order to be able to conclude that the conferring of an advantage distorts competition? In that connection, is it relevant to ascertain the percentage of costs which, as far as the undertakings are concerned, is attributable to transport services operating outside the area of exclusivity? In short, is it necessary that the aid has repercussions on the activity carried on outside the exclusivity area (Lisbon and Oporto) in clearly significant terms? |
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(f)

Having regard to the conditions which the Court of Justice lays down regarding the present Article 87(1) (formerly 92(1)), in particular in its judgment of 24 July 2003 in Case C-280/00 Altmark
   (2), for classification of State aid (‘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.’), what is the meaning and scope of the expressions (i) conferring of an advantage (ii) which distorts competition, in a situation in which the beneficiaries have exclusive rights for public passenger transport services in the cities of Lisbon and Oporto but also operate links to those cities, in areas where other operators are also active? In other words, what criteria must we apply in order to be able to conclude that the conferring of an advantage distorts competition? In that connection, is it relevant to ascertain the percentage of costs which, as far as the undertakings are concerned, is attributable to transport services operating outside the area of exclusivity? In short, is it necessary that the aid has repercussions on the activity carried on outside the exclusivity area (Lisbon and Oporto) in clearly significant terms?

Altmark

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| (g) | Is the intervention by the Commission provided for in Articles 76 and 88 of the Treaty the only legal way of enforcing the Treaty rules on State aid or does the effectiveness of Community law additionally require, in particular, the possibility of direct application of those rules by the national courts at the request of those private individuals who consider themselves to be adversely affected by the grant of a subsidy or aid contrary to the competition rules? |
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(g)

Is the intervention by the Commission provided for in Articles 76 and 88 of the Treaty the only legal way of enforcing the Treaty rules on State aid or does the effectiveness of Community law additionally require, in particular, the possibility of direct application of those rules by the national courts at the request of those private individuals who consider themselves to be adversely affected by the grant of a subsidy or aid contrary to the competition rules?

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(1)  Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ English Special Edition: Series I Chapter 1969(I), p. 276).

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(2)  C-280/00, [2003] ECR I-7810.

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