Opinion of the Advocate General — ECLI:EU:C:2002:475
Date: 2002-09-10
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 — Concept — Selective nature of the measure 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
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2. State aid — Concept — Differential treatment of undertakings in the application of 
charges 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. State aid — Effect on trade between Member States — Aid of minor importance — 
Exclusion by the Commission of the transport sector from the benefit of the de minimis 
rule — Scope — Undertakings which only carry out transport on their own account 
(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 the effect on trade between 
Member States 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC); Art. 253 EC) 
5. State aid — Effect on trade between Member States — Adverse effect on compe­
tition — Aid relatively small in amount in a sector with strong competition 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
6. 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); Art. 253 EC) 
1. Article 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC) does not 
distinguish between the causes or the 
objectives of State aid, but defines them 
in relation to their effects. Therefore, 
its application only requires it to be 
determined whether under a particular 
statutory scheme a State measure is 
such as to favour certain undertakings 
or the production of certain goods over 
others which are in a legal and factual 
situation that is comparable in the light 
of the objective pursued by the measure 
in question. If so, the measure satisfies 
the condition of selectivity which 
defines State aid as laid down by that 
provision. 
The fact that the number of undertak­
ings able to claim entitlement under the 
measure at issue is very large, or that 
they belong to different sectors of 
activity, is not sufficient to call into 
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question its selective nature and there­
fore, to rule out is classification as State 
aid. Thus the structure of an aid 
scheme which favours natural persons 
and small and medium enterprises 
carrying on transport operations on 
their own account or for another is by 
nature selective. 
(see paras 46-49) 
2. The definition of State aid does not 
include national measures introducing 
a differentiation between undertakings 
in relation to charges when that dif­
ferentiation arises from the nature and 
structure of the system of charges in 
question. However, the support pro­
vided to a number of undertakings in 
particular to cover part of the charges 
in their budget, such as the need to 
replace their commercial vehicles, does 
come under that definition. 
(see paras 52, 55) 
3. The situation of professional transport 
companies and that of companies 
which carry out transport only on their 
own account are not sufficiently homo­
geneous for both categories to be 
classified as belonging to the same 
sector and as being operational on the 
same market. 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 guidelines 
and notices, which are binding pri­
marily on the Commission itself, does 
not therefore apply to aid granted to 
undertakings which carry out transport 
only on their own account. That exclu­
sion must, in so far as it refers to an 
exception, be strictly interpreted. 
(see paras 67, 69-70) 
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 
cases, the Commission must set out 
those circumstances in the statement of 
reasons for its decision. A statement of 
reasons explaining that State aid 
granted to a number of beneficiaries 
for an amount greater than the de 
minimis threshold is liable to benefit 
them in a sector in which competition 
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SUMMARY — CASE C-409/00 
has been liberalised between the 
Member States satisfies that require­
ment. 
(see paras 74-75) 
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. Such aid 
is thus caught by Article 92(1) of the 
Treaty (now, after amendment, 
Article 87(1) EC). 
(see paras 76-77) 
6. Since the Community guidelines on 
State aid for environmental protection 
which it has adopted in regard to the 
monitoring of State aid, and which are 
binding on it in so far as they do not 
depart from the rules in the Treaty and 
have been 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 
categories in the statement of reasons 
for its decision. 
(see paras 95-97) 
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