Opinion of the Advocate General — ECLI:EU:C:2002:280
Date: 2002-05-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Spain

Summary of the Judgment 
1. State aid — Definition — Differential treatment of undertakings in the application of 
charges 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
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SUMMARY — CASE C-351/98 
2. State aid — Effect on trade betiveen Member States •— Aid relatively small in 
amount — Commission's exclusion of the transport sector from the benefit of the de 
minimis rule — Scope •—• Undertakings which carry out transport only to meet their 
own needs 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. State aid •—• Investment aid reserved to undertakings established in the territory of the 
Member State concerned •— Discrimination •—• None 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
4. Acts of the institutions — Statement of reasons •— Obligation — Scope — Com­
mission decision on State aid — Characterisation of effect on trade between Member 
States 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 190 (now 
Art. 253 EC)) 
5. State aid — Effect on trade between Member States •— Adverse effect on compe­
tition — Aid the individual amounts of which are relatively small but awarded in a 
sector with strong competition resulting from overcapacity and a large number of small 
companies 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
6. State aid — Investigation by the Commission — Prior investigation — Taking into 
account of effects recorded a posteriori — Impermissible 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
7. Acts of the institutions — Statement of reasons — Obligation — Scope — Refusal 
by the Commission to authorise State aid under guidelines that are binding on it — 
Requirement to classify the aid according to an essential distinction made in the 
guidelines 
(EC Treaty, Art. 92(3) (now, after amendment, Art. 87(3) EC) and Art. 190 (now 
Art. 253 EC)) 
8. State aid •—• Investigation by the Commission — Compatibility of aid with the 
common market — Aid within the guidelines on environmental protection aid — 
Prohibition on cumulation with other aid — None 
(EC Treaty, Art. 92(3)(c) (now, after amendment, Art. 87(3)(c) EC)) 
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SPAIN v COMMISSION 
1. The concept of State aid does not 
encompass differential treatment of 
undertakings in the application of 
charges, where that differential treat­
ment flows from the nature and general 
scheme of the system of charges in 
question. None the less that concept 
does include the support given to 
certain undertakings in particular in 
funding part of the charges that 
normally come out of their budgets 
such as the need to replace their com­
mercial vehicles. 
(see paras 42-43) 
2. The position of professional transport 
companies and companies which carry 
out transport only to meet their own 
needs are such that the latter cannot be 
considered to operate on the transport 
market or to form part of the transport 
sector. Therefore the exclusion, in the 
area of State aid, of the transport sector 
from the benefit of the de minimis rule 
laid down by the Commission's guide­
lines and notices, which are binding on 
it where they do not depart from the 
rules in the Treaty and are accepted by 
the Member States, does not apply to 
aid granted to undertakings which 
carry out transport only to meet their 
own needs to replace their commercial 
vehicles. 
(see paras 48, 53) 
3. Discrimination consists in particular in 
treating like cases differently, involving 
a disadvantage for some operators in 
relation to others, without that differ­
ence in treatment being justified by the 
existence of substantial objective dif­
ferences. Since a measure to support 
investment adopted by a public auth­
ority can by definition apply only in 
respect of the territory for which it is 
responsible, the fact that the benefit of 
the measure does not extend to under­
takings not established in its territory, 
since such undertakings are in a wholly 
different position vis-à-vis the auth­
ority from undertakings established 
within the territory, cannot be regarded 
as discriminatory. 
(see para. 57) 
4. In certain cases the very circumstances 
in which the aid has been granted show 
that it is liable to affect trade between 
Member States and to distort or 
threaten to distort competition. In such 
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SUMMARY — CASE C-351/98 
cases, the Commission must set out 
those circumstances in the statement of 
reasons for its decision. A statement of 
reasons explaining that aid applies to 
an indeterminate number of benefici­
aries above the de minimis threshold, 
that it relates to services the supply of 
which is liberalised between the 
Member States and those services are 
by nature liable to be the subject of 
inter-State supplies satisfies that 
requirement. 
(see para. 58) 
5. State aid of a relatively low amount is 
liable to affect competition and trade 
between Member States where there is 
strong competition in the sector in 
which undertakings receiving that aid 
operate. Except where operators on the 
market in question engage in anti-com­
petitive conduct, a sector characterised 
by overcapacity, must necessarily be 
one with strong competition. More­
over, where a sector has a large number 
of small companies, aid potentially 
available to all or a very large number 
of undertakings in that sector can, even 
if individual amounts are small, have 
an impact on competition and trade 
between Member States and thus be 
caught by Article 92(1) of the Treaty 
(now, after amendment, Article 87(1) 
(EC). 
(see paras 63-65) 
6. Under Article 93(3) of the Treaty (now 
Article 88(3) EC), aid schemes must be 
notified to and authorised by the 
Commission before their entry into 
force and accordingly they can be 
examined only by reference to their 
general characteristics as they appear a 
priori and not in the light of results 
recorded a posteriori. Otherwise 
Member States which implement aid 
schemes before obtaining the Commis­
sion's permission to do so would 
unquestionably be in a more favour­
able position than those which comply 
with the obligation not to implement 
the contemplated measures prior to a 
final decision from the Commission. 
(see para. 67) 
7. Since the Community guidelines on 
State aid for environmental protection 
it has adopted in the field of State aid, 
and which are binding on it in so far as 
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SPAIN v COMMISSION 
it does not depart from the rules in the 
Treaty and is accepted by the Member 
States, make clear that it is essential 
that aid be classified as aid for invest­
ment or operating aid, the Commission 
cannot decide that aid cannot be auth­
orised under those Guidelines without 
classifying it as falling into one of those 
two categories in the statement of 
reasons for its decision. 
(see paras 76-78, 81) 
8. If it fulfils the criteria laid down by the 
Community guidelines applicable to 
State aid for environmental protection 
and, where appropriate, certain secto­
ral rules, a national aid scheme 
intended to reduce pollution and nui­
sances cannot be declared incompatible 
as a whole with the common market on 
the ground that some of the recipients 
have already received State aid auth­
orised under another head since such 
incompatibility is not justified by those 
guidelines or by the Communication on 
cumulation of aid for different pur­
poses. 
(see para. 90) 
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