Judgment of the Court of 24 July 2003 in Case C-280/00 (Reference for a preliminary ruling from the Bundesverwaltungsgericht): Altmark Trans GmbH, Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH (Regulation (EEC) No 1191/69 — Operation of urban, suburban and regional scheduled transport services — Public subsidies — Concept of State aid — Compensation for discharging public service obligations)
Date: 2003-09-20
Institutions: Court of Justice
Subjects: EU law, inland waterway transport, interpretation of the law, rail transport, road transport

20.9.2003

EN

Official Journal of the European Union

C 226/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

of 24 July 2003

D. Louterman-Hubeau, Head of Division, and subsequently
H.A. Rühl, Principal Administrator,
for the Registrar, has
given a judgment on 24 July 2003, in which it has ruled:

in Case C-280/00 (Reference for a preliminary ruling from
the Bundesverwaltungsgericht): Altmark Trans GmbH,
Regierungspräsidium Magdeburg v Nahverkehrsgesell-
schaft Altmark GmbH (1)

(Regulation (EEC) No 1191/69 — Operation of urban, sub-
urban and regional scheduled transport services — Public
subsidies — Concept of State aid — Compensation for dis-
charging public service obligations)

(2003/C 226/01)

(Language of the case: German)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

third

In Case C-280/00: Reference to the Court under Article 234 EC
by the Bundesverwaltungsgericht (Germany) for a preliminary
ruling in the proceedings pending before that court between
Altmark Trans GmbH, Regierungspräsidium Magdeburg and
Nahverkehrsgesellschaft Altmark GmbH,
party:
Oberbundesanwalt beim Bundesverwaltungsgericht, on the
interpretation of Article 92 of the EC Treaty (now, after amend-
ment, Article 87 EC), Article 77 of
the EC Treaty (now
Article 73 EC), and Regulation (EEC) No 1191/69 of the
Council of 26 June 1969 on action by Member States concern-
ing the obligations inherent in the concept of a public service in
transport by rail, road and inland waterway (OJ, English Special
Edition 1969 (I), p. 276), as amended by Council Regulation
(EEC) No 1893/91 of 20 June 1991 (OJ 1991 L 169, p. 1), the
Court, composed of: G.C. Rodríguez Iglesias, President,
and
J.-P.
C.W.A. Timmermans (Rapporteur) (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris,
F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues
Léger, Advocate General;
P.
and A. Rosas,

Puissochet, M. Wathelet,

Schintgen

Judges;

R.

1. Regulation (EEC) No 1191/69 of the Council of 26 June 1969
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 Council Regulation (EEC) No
1893/91 of 20 June 1991, and more particularly the second
subparagraph of Article 1(1) thereof, must be interpreted as
allowing a Member State not to apply the regulation to the
operation of urban, suburban or regional scheduled transport
services which necessarily depend on public subsidies, and to
limit its application to cases where the provision of an adequate
transport service is not otherwise possible, provided however that
the principle of legal certainty is duly observed.

2. The condition for the application of Article 92(1) of the EC
Treaty (now, after amendment, Article 87(1) EC) that the aid
must be such as to affect trade between Member States does not
depend on the local or regional character of the transport services
supplied or on the scale of the field of activity concerned.

However, public subsidies intended to enable the operation of
urban, suburban or regional scheduled transport services are not
caught by that provision where such subsidies are to be regarded
as compensation for the services provided by the recipient under-
takings in order to discharge public service obligations. For the
purpose of applying that criterion, it is for the national court to
ascertain that the following conditions are satisfied:

— first, the recipient undertaking is actually required to dis-
charge public service obligations and those obligations have
been clearly defined;

— second, the parameters on the basis of which the compen-
sation is calculated have been established beforehand in an
objective and transparent manner;

C 226/2

EN

Official Journal of the European Union

20.9.2003

— third, the compensation does not exceed what is necessary to
cover all or part of the costs incurred in discharging the
public service obligations, taking into account the relevant
receipts and a reasonable profit
for discharging those
obligations;

— fourth, where the undertaking which is to discharge public
service obligations is not chosen in a public procurement
procedure, the level of compensation needed has been deter-
mined on the basis of an analysis of the costs which a
typical undertaking, well run and adequately provided with
means of transport so as to be able to meet the necessary
public service requirements, would have incurred in dischar-
ging those obligations, taking into account the relevant
for discharging the
receipts and a reasonable profit
obligations.

3. Article 77 of the EC Treaty (now Article 73 EC) cannot be
applied to public subsidies which compensate for the additional
costs incurred in discharging public service obligations without
taking into account Regulation No 1191/69, as amended by
Regulation No 1893/91.

Marion Roussel Ltd, established in Denham (United Kingdom),
Hoechst Marion Roussel SA, established in Brussels (Belgium),
Marion Merrell SA, established in Puteaux (France), Marion
Merrell SA, established in Barcelona (Spain), Sanova Pharma
GmbH, established in Vienna (Austria), Temmler Pharma GmbH
& Co.KG, established in Marburg (Germany), Schuck GmbH,
established in Schwaig (Germany), Laboratoires Roussell Lda,
established in Mem Martins (Portugal), Laboratoires Roussell
Diamant SARL, established in Puteaux, Roussel
Iberica SA,
established in Barcelona,
(represented by B. Sträter and
M. Ambrosius), Gerot Pharmazeutika GmbH, established in
Vienna,
(represented by K. Grigkar), Cambridge Healthcare
Supplies Ltd, established in Rackhearth (United Kingdom),
(represented by M. D. Vaughan, QC, K. Bacon, barrister, and
S. Davis, solicitor), and Laboratoires pharmaceutiques Trenker
SA, established in Brussels,
(represented by L. Defalque and
X. Leurquin), the Court, composed of: G.C. Rodríguez Iglesias,
President,
J.-P. Puissochet, M. Wathelet, R. Schintgen, C.W.
A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.
Jann (Rapporteur), V. Skouris,
O. Edward, A. La Pergola, P.
F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
A. Rosas,
Judges; S. Alber, Advocate General; M. Múgica
Arzamendi, Principal Administrator, for the Registrar, has given
a judgment on 24 July 2003, in which it:

(1) OJ C 273 of 23.9.2000.

1. Dismisses the appeal;

2. Orders the Commission of the European Communities to pay the
costs of these proceedings and those relating to the application for
interim relief.

JUDGMENT OF THE COURT

of 24 July 2003

(1) OJ C 70 of 22.3.2003.

in Case C-39/03 P: Commission of

the European

Communities v Artegodan GmbH and Others (1)

(Appeal — Directives 65/65/EEC and 75/319/EEC —
Medicinal products for human use — Anorectics: amfepra-
norpseudoephedrine,
fenproporex,
mone,
phentermine — Withdrawal of a marketing authorisation —
Competence of the Commission — Conditions for withdrawal)

clobenzorex,

(2003/C 226/02)

(Languages of the case: German, English and French)

In Case C-39/03 P, Commission of the European Communities,
(Agents: R. B. Wainwright and H. Støvlbæk, assisted by
B. Wägenbaur): Appeal against the judgment of the Court of
First Instance of the European Communities (Second Chamber,
Extended Composition) of 26 November 2002 in Joined Cases
T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00
and T-141/00 Artegodan and Others v Commission [2002]
ECR II-4945, seeking to have that judgment set aside, the
other parties to the proceedings being: Artegodan GmbH,
established in Lüchow (Germany), (represented by U. Doepner),
Bruno Farmaceutici SpA, established in Rome (Italy), Essential
Nutrition Ltd, established in Brough (United Kingdom), Hoechst

ORDER OF THE COURT

(First Chamber)

of 24 July 2003

in Case C-166/02 (Reference for a preliminary ruling from
the Tribunal Judicial da Comarca de Alcácer do Sal): Daniel
Fernando Messejana Viegas v Companhia de Seguros
Zurich SA, Mitsubishi Motors de Portugal SA (1)

(Article 104(3) of the Rules of Procedure — Answer which
may be clearly deduced from existing case-law — Second
Directive 84/5/EEC — Compulsory insurance against civil
liability in respect of motor vehicles — Types of civil
liability — Minimum amounts of cover)

(2003/C 226/03)

(Language of the case: Portuguese)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-166/02: Reference to the Court under Article 234 EC
by the Tribunal Judicial da Comarca de Alcácer do Sal (Portugal)