Judgment — ECLI:EU:C:2009:290
Date: 2009-05-07
Language of the case: Portuguese
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Concepts: Common transport policy;General
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Transport – Action by Member States concerning public service obligations – Regulation No 1191/69 – Compensation in respect of the financial burdens resulting from those obligations – Grant to a public undertaking providing public passenger transport in a municipality (Council Regulation No 1191/69, Arts 1(3) and (5), 2 and 6(2)) 2. Transport – Action by Member States concerning public service obligations – Regulation No 1191/69 – Compensation in respect of the financial burdens resulting from those obligations – Conditions (Council Regulation No 1191/69, Arts 6(2) and (10)) 3. Transport – Action by Member States concerning public service obligations – Regulation No 1191/69 – Aid measures falling within the scope of that regulation – Assessment of compatibility with Community law in the light of the provisions of that regulation (Arts 73 EC and 87(1) EC; Council Regulation No 1191/69) 1. Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, must be interpreted as meaning that it authorises the Member States to impose public service obligations on a public undertaking entrusted with the provision of public passenger transport in a municipality and that it provides for compensation to be granted in respect of the financial burdens resulting therefrom; the amount of such compensation is to be determined in accordance with the provisions of that regulation. Since the obligation to pay compensation is, under Regulation No 1191/69, necessarily linked to the performance of public service obligations, an undertaking which is regarded as offering a public passenger transport service in a municipality without being subject to any public service obligations, is not entitled to such compensation. (see paras 20-21, operative part 1) 2. Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, precludes the grant of compensation payments where it is not possible to determine the amount of the costs imputable to the activity of the undertakings concerned carried out in the performance of their public service obligations. Such is the case as regards a transport undertaking holding a public service concession which is entitled, within specific urban districts, to carry on its activity on an exclusive basis because of the public service obligations to which it is subject, but which also carries on, outside those specified districts and in competition with private operators, a different part of its activity for which it is not subject to the same obligations, where it is not possible to ascertain, on the basis of reliable data from its accounts, the difference between the costs imputable to the part of its activities in the area covered by the concession and the corresponding income and, consequently, where it is not possible to calculate the additional cost deriving from the performance of public service obligations by that undertaking. (see paras 26, 29, operative part 2) 3. Where aid measures fall within the scope of Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, their compatibility with Community law must be assessed in accordance with the provisions laid down by that regulation and not in the light of the Treaty provisions relating to State aid. Where a national court finds certain aid measures to be incompatible with that regulation, it is a matter for that court, having regard to the fact that that regulation is directly applicable, to establish all the consequences, under national law, as regards the validity of the acts giving effect to those measures. (see paras 32-34, operative part 3)