Opinion of the Advocate General — ECLI:EU:C:2001:250
Date: 2001-05-08
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — Conformity of the decision to refer 
with the rules of national law governing the organisation of the courts and their 
procedure — Not a matter for the Court to determine 
(EC Treaty, Art. 177 (now Art. 234 EC» 
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SUMMARY — CASE C-143/99 
2. State aid — Proposed aid — Prohibition of implementation before the Commission's 
final decision — Direct effect •— Scope — Obligations of national courts and 
tribunals — Limits 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
3. State aid — Prohibition — Derogations — Aid which may be regarded as compa­
tible with the common market — Aid for protection of the environment — Discretion 
of the Commission 
(EC Treaty, Art. 92(1) and (3) (now, after amendment, Art. 87(1) and (3) EC)) 
4. State aid — Definition — Partial rebate of taxes on energy to all undertakings in the 
national territory — Excluded 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
5. State aid — Definition — Selectivity of the measure — Partial rebate of taxes on 
energy only to undertakings producing goods — Included — justification because of 
the nature or general scheme of the system established — None 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) 
1. In the procedure provided for by Arti­
cle 177 of the Treaty (now Article 234 
EC) it is not for the Court to determine 
whether the decision whereby a matter 
is brought before it was taken in 
accordance with the rules of national 
law governing the organisation of the 
courts and their procedure. 
(see para. 19) 
2. 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 without the agreement of 
the Commission, as laid down in the 
last sentence of Article 93(3) (now 
Article 88(3), last sentence, EC). 
National courts must offer to indivi­
duals 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 disre­
gard of that provision and possible 
interim measures. However, while the 
national courts may be led, for that 
purpose, to determine whether or not a 
national measure must be classified as 
State aid within the meaning of the 
Treaty, they may not rule on the 
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ADRIA-WIEN PIPELINE AND WIETERSDOREER & PEGGAUER ZEMENTWERKE 
compatibility of aid measures with the 
common market, the final determina­
tion on that matter being the exclusive 
responsibility of the Commission, sub­
ject to review by the Court of Justice. 
(see paras 26-27, 29) 
3. The basic prohibition of State aid is 
neither absolute nor unconditional. 
Thus, Article 92(3) of the Treaty 
(now, after amendment, Article 87(3) 
EC) confers on the Commission a wide 
discretion to declare certain aid com­
patible with the common market by 
way of derogation from the general 
prohibition laid down in Article 92(1) 
of the Treaty. Environmental protec­
tion requirements are capable of con­
stituting an objective by virtue of 
which certain State aid measures may 
be declared compatible with the com­
mon market. 
(see paras 30-31) 
4. National measures which provide for a 
rebate of energy taxes on natural gas 
and electricity do not constitute State 
aid within the meaning of Article 92 of 
the Treaty (now, after amendment, 
Article 87 EC) where they apply to all 
undertakings in national territory, 
regardless of their activity. 
As is apparent from the terms of 
Article 92(1) of the Treaty, an eco­
nomic benefit granted by a Member 
State constitutes State aid only if, by 
displaying a degree of selectivity, it is 
such as to favour certain undertakings 
or the production of certain goods. A 
State measure which benefits all under­
takings in national territory, without 
distinction, cannot therefore constitute 
State aid. 
(see paras 34-36, and operative part 1) 
5. For the application of Article 92 of the 
Treaty (now, after amendment, Arti­
cle 87 EC), it is irrelevant that the 
situation of the presumed beneficiary 
of the measure is better or worse in 
comparison with the situation under 
the law as it previously stood, or has 
not altered over time. The only ques­
tion to be determined is whether, under 
a particular statutory scheme, a State 
measure is such as to favour certain 
undertakings or the production of 
certain goods within the meaning of 
Article 92(1) of the Treaty in compar­
ison with other undertakings which are 
in a legal and factual situation that is 
comparable in the light of the objective 
pursued by the measure in question. 
However, a measure which, although 
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SUMMARY — CASE C-143/99 
conferring an advantage on its recipi­
ent, is justified by the nature or general 
scheme of the system of which it is part 
does not fulfil that condition of selec­
tivity. 
National measures which provide for a 
rebate of energy taxes on natural gas 
and electricity only in the case of 
undertakings whose activity is shown 
to consist primarily in the manufacture 
of goods must be regarded as State aid 
within the meaning of Article 92 of the 
Treaty. First, neither the large number 
of eligible undertakings nor the diver­
sity and size of the sectors to which 
those undertakings belong provide any 
grounds for concluding that a State 
initiative constitutes a general measure 
of economic policy. Second, any justi­
fication for the grant of advantages to 
undertakings whose activity consists 
primarily in the production of goods 
is not to be found in the nature or 
general scheme of the taxation system 
established under those national mea­
sures. There is nothing in those mea­
sures to support the conclusion that the 
rebate scheme restricted to undertak­
ings which primarily manufacture 
goods is a purely temporary measure 
enabling them to adapt gradually to the 
new scheme because they are dispro­
portionately affected by it. Undertak­
ings supplying services may, just like 
undertakings manufacturing goods, be 
major consumers of energy. The ecolo­
gical considerations underlying the 
national measures do not justify treat­
ing the consumption of natural gas or 
electricity by undertakings supplying 
services differently from the consump­
tion of such energy by undertakings 
manufacturing goods, as energy con­
sumption by each of those sectors is 
equally damaging to the environment. 
(see paras 41-42, 48-52, 55, 
and operative part 2) 
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