Opinion of the Advocate General — ECLI:EU:C:2002:643
Date: 2002-11-07
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Agreements, decisions and concerted practices;Taxation;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Customs Union;Internal taxation;Charges having an equivalent effect;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, Advocate General Jacobs favoured a distinction based (i) on the nature of the link between the financing granted and the general interest duties imposed and (ii) on how clearly those duties had been defined. (117) Accordingly, he favoured applying the compensation approach in cases, ‘where the financing measures are clearly intended as a quid pro quo for clearly defined general interest obligations’. (118) In his opinion, other cases should continue to be subject to the Commission’s State aid law surveillance. (iii) Opinion and conclusions for the present case 153. If one proceeds on the basis that the determination of whether a measure constitutes State aid requires an investigation into ‘whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions’, (119) then it must be examined whether the recipient undertaking supplies a service which is normally supplied in return for consideration and whether the consideration actually given was reasonably proportionate to that service. 154. Therefore, the compensation approach taken in Ferring may be adopted only where the service and the consideration are clearly identifiable. However, as regards services of general economic interest, it is to be observed that it is difficult to find a standard for assessing the proportionality of the compensation, since services of general economic interest are supplied usually ‘where market forces alone do not result in a satisfactory provision of services’. (120) 155. However, where the general interest duties have not been clearly defined, it is not possible to adopt the compensation approach. This is because in such cases it is ex hypothesi impossible to calculate the burdens (i.e. the costs) resulting from them with sufficient precision. In such cases, it is impossible to find the direct and manifest link to the obligations undertaken which Advocate General Jacobs required. 156. As regards the present case, I have already explained that in my opinion the AMMs’ general interest duties (if they have any) have not been defined sufficiently clearly. (121) This is enough to preclude a finding that there is no de facto economic advantage at the stage of determining whether there is State aid. In addition, it is clear that any burdens which may result from performing services of general economic interest are financed from a number of sources, without any clear allocation. (122) 157. It cannot be disputed that criteria such as a direct and manifest link between the burdens imposed and the compensation for them need to be refined. However, issues relating to services of general economic interest are of an ‘evolutionary character’ (as the Commission recently emphasised), (123) and such criteria do provide a flexible standard of assessment. In this connection it is to be observed that requiring a direct or manifest link between the burdens imposed and the compensation for them does not in principle preclude the possibility that services of general economic interest may be entrusted by means other than a procurement procedure. This is to be welcomed, since Community law does not recognise a general obligation to conduct procurement procedures and it is not impossible that other ways of entrusting services, for example existing de facto avenues of negotiation, could ensure that the State need pay only a reasonable consideration for services supplied to it. 158. As regards the argument that the compensation approach is not compatible with the objective nature of the concept of aid, I think that where one examines whether the State allocation compensates or over-compensates for a disadvantage in considering the question whether an advantage has been granted, one need at that stage have regard only to the effects of the allocation of funds. The purposes for which the funds are allocated need be investigated only in so far as is necessary to establish whether the services are of general economic interest. (124) 159. I do not think that the argument that Article 86(2) EC might be deprived of its effect leads to a different conclusion. Even if this were the case with respect to Article 87(1) EC, Article 86(2) EC would be unaffected as regards the application of the other competition provisions and in the area of fundamental freedoms. One might regret that Article 86(2) EC would not apply in the same way in the context of State aid law as it would in the context of the rest of competition law. However, this point cannot be decisive. Such a difference already exists in other respects: for example, in the context of Article 86(2) EC the requirement that the measure distorts competition is less stringent than the requirement in State aid law that the burden must be no more than compensated for. (125) 160. Finally, the Commission’s role has to be considered. The Commission’s review powers (which are in any case restricted as regards the lawfulness of the contract to provide services) give rise to the consequences of Article 88(3) EC, in particular the prohibition on putting the proposed measures into effect. However, precisely this prohibition appears difficult to justify in the case of services of general economic interest. It was because of exactly this point that doubts arose as to the State aid approach. (126) If a compensation payment in fact over-compensates, the Commission is free to introduce infringement proceedings against the Member State concerned. 161. In result, it is to be considered that the allocation of a significant part of the proceeds of a port charge to a public undertaking constitutes State aid within the meaning of Article 87 EC if the allocation of funds has no direct and manifest link to the burdens resulting from the supply of clearly identifiable services of general economic interest. (c) The national courts' task under Article 88(3) EC 162. By the second part of the third question, the national court asks in substance whether national courts are authorised or required to intervene under Article 88(3) EC where a State aid has not been notified to the Commission. 163. According to the Court’s case-law, the national courts are involved in the system for the review of State aid through ‘the direct effect attributed to the prohibition on implementation of planned aid laid down in the last sentence of Article 93(3) of the EC Treaty [now the last sentence of Article 88(3) EC] ... National courts must offer to individuals the certain prospect that all appropriate conclusions will be drawn from an infringement of that provision, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures’ (127) (emphasis added). 164. National courts come under this obligation whenever the prohibition in the last sentence of Article 88(3) EC is infringed. 165. Therefore, the answer to the question posed by the Corte Suprema di Cassazione is that national courts are required to intervene whenever a national provision contains an aid measure which has not been notified to the Commission. (d) The fifth question, in so far as it concerns State aids 166. By its fifth question (in so far it concerns State aids), the national court asks in substance whether the whole charge or only the part allocated to the AMMs is to be regarded as State aid. 167. The Court designates charges dedicated to a particular purpose as ‘parafiscal charges’. In the case of such charges, which are characterised by the fact that when they are levied they are already destined to finance a particular allocation of funds, State aid law distinguishes between two transactions, namely the increase of State funds resulting from the levying of the charge and the use of those funds by allocating the proceeds to the recipient. The dedication of purpose creates a certain link between levy and allocation. (128) 168. However, the fact that it is possible to distinguish between levying a charge and using its proceeds is shown clearly by the national provision contested in the present case. There has been a general provision relating to levying a port charge since 1963, but there was no provision for dedicating a significant proportion of the charge to a particular purpose until 1973. 169. In FNCE, (129) the Court discussed the introduction of a parafiscal charge without distinguishing between levy and application. By contrast, in Compagnie commerciale de l’Ouest, the Court did distinguish between the charge itself and its application, stating that ‘a parafiscal charge like the one at issue in this case may, depending on how the revenue from it is used, constitute State aid incompatible with the common market’. (130) 170. This distinction has been confirmed and (subject to terminological differences) applied in a series of judgments concerning parafiscal charges, the Court having classified sometimes the application of the proceeds of the charge (131) and sometimes the levying of the charge (132) as State aid. 171. The case-law is not clear as to whether only the application of the charge or also the levying of the charge is to be classified as aid. In Lornoy, Demoor and others and Claeys, Advocate General Tesauro discussed this question in detail, classified the levying of the charge as aid, and concluded that if the requirements of the last sentence of Article 88(3) EC were satisfied, the taxpayer could object to the levying of the charge or seek its recovery before the national courts. None the less, he also considered a more restrictive interpretation under which the only consequence of the fact that aid was unlawful under Community law was that the aid could not be granted, and that the lawfulness of levying the charge was unaffected. (133) 172. In the present case, competition is distorted by the application of the proceeds of the charge by means of the funds allocation. Therefore, in theory, only the allocation of funds can constitute aid. For that reason, in so far as the fifth question concerns State aid, the answer to it is that only the part allocated to the AMMs is to be classified as State aid. 173. Whether the infringement of Article 88(3) EC affects the lawfulness of levying the charge is a separate question. In the operative part of the judgment in FNCE, (134) the Court stated that the last sentence of Article 88(3) EC ‘is to be interpreted as imposing on the authorities of the Member States an obligation whose infringement will affect the validity of measures giving effect to aid’. As regards this point, the Court stated in the grounds of the judgment that, ‘[n]ational courts must offer to individuals in a position to rely on such breach the certain prospect that all the necessary inferences will be drawn, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures’. (135) 174. In my opinion, it follows that the question as to which national measure is affected by that invalidity is a matter exclusively for national law, subject as usual to the principles of equivalence and effectiveness. (136) VI ─ The fourth question: the allocation in terms of free movement of goods, as a charge having an effect equivalent to a customs duty or as discriminatory internal taxation (Articles 28, 25 and 90 EC) A ─ Submissions of the parties 175. Enirisorse submits that the disputed provision infringes Articles 28 EC, 25 EC and 90 EC. This affects the whole of the charge provisions. 176. The Commission submits that since the present case concerns a taxation measure, Article 28 EC does not apply. Furthermore, the Commission does not regard the measure as a charge having an effect equivalent to a customs duty within the meaning of Article 25 EC. The measure is to be assessed under Article 90 EC on the basis that it is an internal tax. It applies without distinction to domestic and imported goods, and therefore cannot be held to be a discriminatory internal tax. 177. The Italian Government does not regard the contested provision as infringing the free movement of goods, or as a charge having an effect equivalent to a customs duty, or yet as an internal tax infringing Article 90 EC. B ─ Analysis 178. By its fourth question, the national court asks in substance whether the contested provision is compatible with the Treaty provisions relating to free movement of goods, the prohibition on charges having an effect equivalent to customs duties and the principle of equal treatment in the context of internal taxation. 179. The fourth question refers to ‘the appropriation ..., ab origine, of a significant proportion of the proceeds from a ... charge’ and not to the actual levying of the charge. However, in order to give a useful answer to the question, it is to be understood as asking whether the charging provision is compatible with the abovementioned Treaty provisions. 1. Free movement of goods 180. The Court has consistently held ‘that the scope of Article 30 [now, after amendment, Article 28 EC] does not extend to the obstacles to trade covered by other specific provisions of the Treaty, and that obstacles of a fiscal nature or having an effect equivalent to customs duties which are covered by Articles 9 to 16 and 95 of the Treaty [now, after amendment, Articles 23 EC to 25 EC and 90 EC] do not fall within the prohibition laid down in Article 30 [now, after amendment, Article 28 EC]’. (137) 181. It follows that the contested provision relating to the levy of the port charge is to be assessed under Articles 25 EC and 90 EC. 2. A charge having an effect equivalent to a customs duty 182. It must first be recalled that ‘[t]he Court has consistently held ... that provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, so that under the system of the Treaty the same imposition cannot belong to both categories at the same time’. (138) The Court has also held that ‘[t]he essential feature of a charge having an effect equivalent to a customs duty which distinguishes it from an internal tax resides in the fact that the former is borne solely by an imported product as such whilst the latter is borne both by imported and domestic products, applying systematically to categories of products in accordance with objective criteria irrespective of the origin of the products’. (139) 183. The order of the national court states that the contested charging provision applies without distinction to domestic and imported goods and therefore that it is not a condition of the imposition of the charge that the goods must have originated in another (Member) State. This assessment of the substance of the charge is not altered by the fact that according to the national court, Italian law regards the disputed port charge as equivalent to a ‘diritto doganale’ (customs duty). Therefore, it is not a charge having an effect equivalent to a customs duty. 3. Internal taxation 184. Article 90 EC provides that no Member State is to impose, directly or indirectly, on the products of other Member States internal taxation in excess of that imposed on similar domestic products or of such a nature as to afford indirect protection to other domestic products. ‘It is therefore beyond question that application of a higher charge to imported products than to domestic products or application to imported products alone of a surcharge in addition to the duty payable on domestic and imported products is contrary to’ the prohibition of discrimination laid down in Article 90 EC. (140) 185. There is no suggestion in the national court’s order that the contested provision infringes this prohibition of discrimination. 186. Therefore, the answer to be given to the fourth question is that the State charge levied on the unloading or loading of goods in ports does not constitute a charge prohibited by Article 25 EC as having an effect equivalent to an import duty, an internal tax on products from other Member States in excess of the charge levied on similar domestic products within the meaning of Article 90 EC or a barrier to imports, prohibited by Article 28 EC. VI – Conclusions 187. Therefore, I suggest to the Court that the questions referred by the Corte Suprema di Cassazione should be answered as follows: The allocation to a public undertaking – operating in the market for cargo handling service in the ports concerned – of a significant proportion of a charge levied on unloading or loading goods in certain ports, and paid to the State by operators (1) can constitute a measure infringing Article 82 EC in conjunction with Article 86(1) EC where the recipient undertaking has a dominant position in the relevant market as defined by the national court, and that market is a substantial part of the common market. It is for the national court to determine whether these conditions are fulfilled in the circumstances of the case. If the national court were to find that there has been abuse of a dominant position, only the part of the proceeds of the charge that is allocated to the AMMs would be incompatible with Community law; (2) constitutes State aid within the meaning of Article 87(1) EC, which requires that the national courts intervene if the conditions of Article 88(3) EC are met. The question as to which domestic measure is affected by the invalidity is a matter for national law; (3) does not constitute a charge prohibited by Article 25 EC as having an effect equivalent to an import duty, an internal tax on products from other Member States in excess of the charge levied on similar domestic products within the meaning of Article 90 EC or a barrier to imports, prohibited by Article 28 EC. 1 – Original language: German. 2– Gazzetta Ufficiale della Repubblica Italiana (hereinafter, ‘GURI’) No 272 of 30 October 1967. 3– GURI No 274 of 21 October 1974. 4– GURI No 147 of 5 June 1976. 5– GURI No 52 of 23 February 1963. 6– In addition to this port charge, Legislative Decree (‘decreto legge’) No 47/74, as amended and transformed into Law No 117/74 (GURI No 115 of 4 May 1974), introduced a tassa erariale di sbarco e imbarco (State charge on unloading and loading) of goods carried by sea or air in all Italian ports, but this is not paid over to the AMMs. 7– GURI No 270 of 4 October 1977. 8– It is to be inferred from the submissions of the Italian Government that in fact it is Portovesme port. However, this is not material since the Cagliari AMM also operates in Portovesme. 9– Case C-340/99 TNT Traco [2001] ECR I-4109. 10– Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089. 11– Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I-5889. 12– Case C-323/93 Centre d’insémination de la Crespelle [1994] ECR I-5077. 13– Cited above, note 9. 14– TNT Traco (cited above, note 9), paragraph 30, under reference to Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38. 15– Case C-35/99 Manuele Arduino [2002] ECR I-1529, paragraph 25, under reference to Bosman (cited above, note 14), paragraph 61, and PreussenElektra (cited above, note 14), paragraph 39. 16– Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 70. See also Joined Cases C-320/90 to 322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 7. 17– Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21. 18– See, for example, Joined Cases 188/80 to 190/80 France, Italy and United Kingdom v Commission [1982] ECR 2545, paragraph 12. 19– See Schwarze and von Burchard, EU-Kommentar, Article 86 of the EC Treaty, paragraph 8. 20– Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 10. 21– See in particular Case 30/87 Bodson [1988] ECR 2479, paragraph 16. 22– See Case C-242/95 GT-Link [1997] ECR I-4449, paragraph 36, and Case C-209/98 Sydhavnens Sten & Grus [2000] ECR I-3743, paragraph 57. 23– Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 37. 24– See the amended proposal for a Directive of the European Parliament and of the Council on Market Access to Port Services (COM (2002) 0101 final) (OJ 2002 C 181 E, p. 160), Article 4 of which defines port services as, ‘services of commercial value that are normally provided against payment in a port and which are listed in the Annex’. It appears from the Annex that ‘port services’ include in particular cargo handling, ‘including (a) loading and unloading; (b) stevedoring, stowage, transhipment and other intra-terminal transport; (c) storage, depot and warehousing, depending on cargo categories; (d) cargo consolidation’. 25– See for example Sydhavnens Sten & Grus (cited above, note 22), paragraph 60. 26– Paragraph 60. 27– Ambulanz Glöckner (cited above, note 10), paragraph 34, under reference to Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 44. 28– See in particular Michelin (cited above, note 23), paragraph 30, and Bodson (cited above, note 21), paragraph 26. 29– Bodson (cited above, note 21), paragraph 26. 30– See for example Case C-38/97 Autotrasporti Librandi [1998] ECR I-5955, paragraph 27, under reference to Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38. 31– Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 25, under reference to Case C-202/88 France v Commission (‘Telecommunications terminals equipment’) [1991] ECR I-1223, paragraph 51. 32– Joined Cases C-395/96 P and 396/96 P Compagnie Maritime Belge Transports and Others v Commission [2000] ECR I-1365, paragraph 37, under reference to Michelin (cited above, note 23), paragraph 57. 33– Case C-203/96 Chemische Dusseldorp and Others [1998] ECR I-4075, paragraph 60. That case concerned whether a provision granting a single undertaking the exclusive right to incinerate dangerous waste throughout the entire territory of the Member State was compatible with Article 86(1) EC in conjunction with Article 82 EC. 34– Cited above, note 22, paragraph 35 35– Cited above, note 9. 36– Cited above, note 9, paragraph 40. 37– Cited above, note 9, paragraph 43. 38– Cited above, note 9, paragraph 44. 39– Cited above, note 10, paragraphs 83 to 89. 40– As regards compensation for any public service burdens, see my considerations below relating to State aid, paragraphs 142 ff. 41– It is to be observed that in TNT Traco (cited above, note 9), it was not in dispute that Poste Italiane dominated the relevant market: see paragraph 43. 42– In this connection, it is to be borne in mind that State aids distort competition by giving a particular undertaking an ‘unearned cost advantage’ (Rawlinson, in Lenz, EG-Vertrag Kommentar, Article 87 EC, paragraph 10. 43– In this connection, one must remember the Court's case-law, according to which inconsistencies between Article 87 ff. EC and other provisions of the Treaty are to be minimised. In Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 42, proceedings under Article 88(2) EC, the Court spoke of an, ‘obligation on the part of the Commission to ensure that Articles [87 EC] and [88 EC] are applied consistently with other provisions of the Treaty’. 44 – See in particular Case C-82/01 P Aéroports de Paris [2002] ECR I-9297, paragraphs 106 and 107: ‘ADP, as the owner of the airport facilities, is alone in being able to authorise access. …ADP … enjoys a legal monopoly … to manage the airports concerned and is alone able to grant authorisation to carry out groundhandling activities there and to determine the terms on which those activities are carried out. In those circumstances, the Court of First Instance could properly conclude … that ADP wields economic power which enables it to prevent effective competition from being maintained in the relevant market by giving it the opportunity to act independently.’ In the present case the State appears to remain in ownership of the port installations. That said, it appears possible to make a comparison in so far as, pursuant to Law No 961/67, the AMMs have a monopoly over the operation of the requisite infrastructure. Should that be confirmed, the AMMs would then be in a position to exercise a determining influence on access to the market for the provision of port services, with the result that a dominant position could be presumed. 45– GT-Link (cited above, note 22), paragraph 37, under reference to Merci convenzionali porto di Genova (cited above, note 11), paragraph 15. 46– Cited above, note 11. 47– Centre d'insémination de la Crespelle (cited above, note 12), paragraph 17. 48– TNT Traco (cited above, note 9), paragraph 44, under reference to GT-Link (cited above, note 22), paragraph 33 and Dusseldorp and Others (cited above, note 33), paragraph 61. See also Sydhavnens Sten & Grus (cited above, note 22), paragraph 66. 49– See also Sydhavnens Sten & Grus (cited above, note 22), paragraph 67: ‘The Court has thus held that a Member State may, without infringing Article 86 of the Treaty, grant exclusive rights to certain undertakings provided they do not abuse their dominant position or are not led necessarily to commit an abuse’, under reference to Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 41. 50– United Brands (cited above, note 27), paragraphs 248 ff. 51– TNT Traco (cited above, note 9), paragraph 46, under reference to Centre d'insémination de la Crespelle (cited above, note 12), paragraph 25 and GT-Link (cited above, note 22), paragraph 39. 52– TNT Traco (cited above, note 9), paragraph 47. 53– Opinion in Case C-340/99 (cited above, note 9), paragraph 66 f. 54– See Ambulanz Glöckner (cited above, note 10), paragraph 40, under reference to GB-Inno-BM (cited above, note 31), paragraph 21, and Dusseldorp and Others (cited above, note 33), paragraph 61. 55– Cited above, note 53, paragraph 74. 56– On this point, the Court has already held that there is abuse where an undertaking in a dominant position selectively cuts its prices, where the lower prices are directed against a competitor (see Compagnie Maritime Belge Transports and Others (cited above, note 32), paragraph 117). 57– See, for example, Bodson (cited above, note 21), paragraph 22, GT-Link (cited above, note 22), paragraph 44 and Ambulanz Glöckner (cited above, note 10), paragraph 48. 58– Ambulanz Glöckner (cited above, note 10), paragraph 48, under reference to Case C-306/96 Javico [1998] ECR I-1983, paragraph 16. 59– Ambulanz Glöckner (cited above, note 10), paragraph 49, with further references. 60– In this connection, see Ambulanz Glöckner (cited above, note 10), paragraph 50. 61– Sydhavnens Sten & Grus (cited above, note 22), paragraph 74. 62– Case C-159/94 Commission v France [1997] ECR I-5815, paragraphs 65 to 69. 63– See in particular Law No 961/67, cited above. 64– GT-Link (cited above, note 22), paragraph 52. See also Merci convenzionali porto di Genova (cited above, note 11), paragraphs 25 ff., and the Opinion of Advocate General van Gerven in the same case, paragraph 27. 65– Corsica Ferries France (cited above, note 49), paragraph 45. 66– Case 10/71 Muller and Others [1971] ECR 723, paragraph 11. 67– See in particular GT-Link (cited above, note 22), paragraph 53. 68– Cited above, note 49. 69– Cited above, note 22, paragraph 54. 70– Case 266/81 SIOT [1983] ECR I-731, paragraph 21. 71– See, for example, Case C-393/92 Almelo and Others [1994] ECR I-1477, paragraph 48. See also Corbeau (cited above, note 20), paragraph 15, and Commission v France (cited above, note 62), paragraphs 57 f. See also Blum and Logue, State monopolies under EC Law, pp. 175 ff. 72 – With regard to the market for groundhandling services at airports, Article 16(3) of Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36) provides for the possibility of a fee being collected with regard to access to airport installations, particularly in the case of self-handling market operators. The interpretation of that provision forms the subject-matter of Case C-363/01, which is at present pending. 73 – Cited above, note 64. 74– See my considerations above (paragraphs 55 ff.) concerning whether the allocation of funds constitutes the grant of exclusive rights. In the context of Article 86(2) EC, there is nothing to preclude analysing the allocation of funds as the grant of exclusive rights, since Article 86(2) EC can also be used to justify the grant of State aid. 75– Dusseldorp and Others (cited above, note 33), paragraph 67. 76– See Commission v France (cited above, note 62), paragraph 96: the exception from the Treaty provisions applies where it is necessary to enable the undertaking entrusted with the task to perform the particular task under economically acceptable conditions. 77– See above, paragraph 101. 78– Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (OJ 2000 L 193, p. 75). 79– In this connection, it is to be observed that one of the aims of the amended proposal for a Directive on Market Access to Port Services (cited above, note 24) is transparency of the financial relations between Member States and ports: see in particular Article 12 on accounting for port service activities. 80– See below, paragraphs 138 ff. 81– GT-Link (cited above, note 22), paragraph 57. 82– GT-Link (cited above, note 22), paragraph 61. 83– Cited above, note 14. 84– As regards this submission, see above, paragraph 28. 85– Cited above, note 14. 86– Case C-53/00 Ferring [2001] ECR I-9067. 87– Case C-390/98 Banks & Co. [2001] ECR I-6117, paragraph 80, under reference to Case C‑437/97 EKW and Others [2000] ECR I-1157, paragraphs 51 to 53, and Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraphs 26 to 29. 88– See above, paragraphs 28 ff., and the case-law cited in note 14. 89– Cited above, note 86. 90– Case C-126/01 [2003] ECR I-13769. See the Opinion of Advocate General Jacobs. 91– Cited above, note 86, paragraphs 20 to 24 of the Opinion. 92– Cited above, note 90, in particular paragraphs 35 to 48 of the Opinion. 93– See below, paragraphs 177 ff. 94– See above, paragraphs 35 f. 95– As regards the requirement of selectivity, see in particular Case C-143/99 Adria-Wien Pipeline and Another [2001] ECR I-8365, paragraphs 34 f. 96– Cited above, note 14. 97– Ferring (cited above, note 86), paragraph 21, under reference to Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11. 98– See in particular Ferring (cited above, note 86), and also Adria-Wien Pipeline (cited above, note 95). 99– See in particular Nettesheim, Europäische Beihilfeaufsicht und mitgliedstaatliche Daseinsvorsorge, EWS 2002, 253; Gundel, Staatliche Ausgleichszahlungen für Dienstleistungen von allgemeinem wirtschaftlichen Interesse: Zum Verhältnis zwischen Artikel 86 Absatz 2 EGV und dem EG-Beihilfenrecht, RIW 2002, 222; Ruge, EuZW 2002, 50. 100– See the Opinion of Advocate General Léger in Case C-280/00 Altmark Trans and Another [2003] ECR I-7747, and of Advocate General Jacobs in GEMO (cited above, note 90). 101– See the documents cited by Advocate General Jacobs in note 50 of his Opinion in GEMO. See also the Communication from the Commission? A Methodological Note for the Horizontal Evaluation of Services of General Economic Interest (COM (2002) 331 final) and the Exploratory Opinion of the Economic and Social Committee of 17 July 2002 on Services of General Interest (No 860-2002). In this connection, reference may also be made to Article 36 of the Charter of Fundamental Rights: ‘The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union’. 102– See above, paragraph 92 et seq. 103 – Cited above, note 86. 104– Paragraph 17. 105– See the similar formulation in Adria-Wien Pipeline (cited above, note 95), paragraph 42: ‘According to the case-law of the Court, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity’. 106– Paragraph 27. 107– See the case-law cited in notes 112 and 113. On the case-law prior to Ferring, see Koenig, Kühling and Ritter, EG-Beihilfenrecht, p. 33. 108– On the Commission's practice in making decisions, see J.-Y. Chérot, Financement des obligations de service public et aides d'État, Europe 2000, p. 4. An example of the Commission having regard to the State aids approach is to be found in its Decision of 10 June 1998 concerning State aid in favour of Coopérative d'exportation du livre français (CELF) (OJ 1998 L 44, p. 37). The Commission investigated the compensation at dispute in that case, which related to a French scheme for promoting book exports, by reference to Article 87(1) EC and Article 87(3)(d) EC. Since it considered the latter provision to be applicable, it did not analyse Article 86(2) EC. 109– Case 240/83 [1985] ECR 531, paragraph 18. 110– Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23). 111– Case T-106/95 FFSA and Others v Commission [1997] ECR II-229. The Court of First Instance confirmed this approach in Case T-46/97 SIC v Commission [2000] ECR II-2125. 112– Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303. 113– Case C-387/92 Banco Exterior de EspaZa [1994] ECR I-877. See also the express statement in Case C-332/98 France v Commission [2000] ECR I-4833, paragraphs 31 ff. 114– Cited above, note 100. 115– .Cited above, note 90. 116– Paragraph 117. 117– Paragraph 118. 118– Paragraph 119. 119– See in particular Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 60. 120– See, for example, Communication from the Commission ? Services of general interest in Europe, COM (2000) 580 final, p. 3. 121– See above, paragraph 106, under reference to paragraph 101. 122– See above, paragraph 108. 123– See the Communication cited in paragraph 101, point 3.1(a). 124– However, in this regard it must be remembered that the Court's supervisory role is limited, since the Member States are given a wide discretion when awarding contracts for services. 125– See in particular Commission v France (cited above, note 62), paragraph 59: it is necessary where the application of the Treaty provisions obstructs the performance, in law or in fact, of the special obligations. It is not necessary that the survival of the undertaking itself be threatened. 126– See the Opinion of Advocate General Tizzano in Ferring (cited above, note 86), paragraphs 77 ff. 127– Adria-Wien Pipeline (cited above, note 95), paragraphs 26 f., under reference to Case C-354/90 FNCE and Another [1991] ECR I-5505, paragraph 12. 128– Thus, in Case 47/69 France v Commission [1970] ECR 487, paragraphs 16 f., concerning charges intended to finance a particular grant of aid, the Court considered that, ‘both ... the method of financing and ... the close connexion which makes the amount of aid dependent upon the revenue from the charge’ were to be taken into account in assessing the effects of the aid. 129– Cited above, note 127. 130– Joined Cases C-78/90 to C-83/90 Compagnie commercial de l'Ouest and Others [1992] ECR I-1847, paragraph 35. 131– Joined Cases C-149/91 and C-150/91 Sanders Adour and Guyomarc'h Orthez Nutrition Animale [1992] ECR I-3899, paragraph 24: ‘Although the charge in question does in certain respects come within the scope either of Article 12 or of Article 95 of the Treaty, the use to which the revenue from it is put, or the machinery for its reimbursement, may nevertheless constitute a State aid, possibly incompatible with the common market’ and in the operative part of the judgment, ‘The reimbursement of a parafiscal charge like the one at issue in this case, or the use to which the revenue from it is put, may constitute State aid incompatible with the common market’; Case C-266/91 CELBI [1993] ECR I-4337, operative part of the judgment: ‘The use made of the revenue from a parafiscal charge, such as that at issue, may constitute a State aid incompatible with the common market’; Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 28: ‘Although the parafiscal charge in question may be prohibited either by Articles 12 and 13 or by Article 95 of the Treaty, the use to which the revenue from that charge is put, for the benefit of domestic products, may nevertheless constitute State aid incompatible with the common market’ and in the operative part of the judgment, ‘A parafiscal charge of the kind at issue in the main proceedings may, depending on how the revenue from it is used, constitute State aid incompatible with the common market’. 132– Case C-72/92 Scharbatke [1993] ECR I-5509, operative part of the judgment: ‘The collection of a parafiscal charge of that kind may, depending on how the revenue from it is used, constitute State aid incompatible with the common market’. 133– Joined Opinions in Case C‑17/91 (cited above, note 131), Joined Cases C‑144/91 and C‑145/91 Demoor and Others [1992] ECR I‑6613 and Case C‑114/91 Claeys [1992] ECR I‑6559. 134– Cited above, note 127. 135– Paragraph 12. 136– See also the Opinion of Advocate General Jacobs in GEMO (cited above, note 90), paragraph 44: ‘Under the principle of procedural autonomy it is then in my view for the national legal order to determine precisely which national measures are affected by that invalidity and what consequences that invalidity has for example for the refund of charges collected on the basis of the measures concerned. The only limitations on that autonomy are the principle of equivalence and the principle of effectiveness’. 137– Lornoy (cited above, note 131), paragraph 14, under reference to Case 74/76 Ianelli and Volpi [1977] ECR 557 and Compagnie commerciale de l'Ouest (cited above, note 130). 138– Case C-90/94 Haahr Petroleum [1997] ECR I-4085, paragraph 19, under reference to CELBI (cited above, note 131), paragraph 9. 139– Case C-212/96 Chevassus-Marche [1998] ECR I-743, paragraph 20, under reference to Case 90/79 Commission v France [1981] ECR 283, paragraphs 12 to 14. 140– Haahr Petroleum (cited above, note 138), paragraph 27.