Judgment of the Court (Fifth Chamber) of 27 November 2003 In Joined Cases C-34/01 to C-38/01 (Reference for a preliminary ruling from the Corte Suprema di Cassazione): Enirisorse SpA v Ministero delle Finanze (Public undertakings — Transfer to public undertakings of a proportion of port charges paid to the State — Competition — Abuse of a dominant position — State aid — Charge having equivalent effect — Internal taxation — Free movement of goods)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: competition law, dominant position, harbour installation, interpretation of the law, provision of services, tax system

24.1.2004

EN

Official Journal of the European Union

C 21/3

Article 8(2) and (3) of Council Directive 92/81/EEC of
19 October 1992 on the harmonisation of the structures of
excise duties on mineral oils, and Article 5(1) of Council
Directive 92/82/EEC of 19 October 1992 on the approxi-
mation of the rates of excise duties on mineral oils;

C. W. A. Timmermans, A. Rosas, D. A. O. Edward and S. von
Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
H. von Holstein, Deputy Registrar, has given a judgment on
27 November 2003, in which it has ruled:

2. Orders the Republic of Finland to pay the costs;

3. Orders the Kingdom of Sweden to bear its own costs.

(1) OJ C 247 of 26.8.2000.

1. A measure by which a Member State allocates to a public
undertaking a significant proportion of charges, such as the
port charges at issue in the main proceedings, must be classified
as State aid within the meaning of Article 92(1) of the EC
Treaty (now, after amendment, Article 87(1) EC), in so far as
it affects trade between Member States, if:

— the allocation of the charges is not linked to clearly defined

public-service duties, and/or

— the compensation allegedly necessary in order for those
duties to be performed has not been calculated on the
basis of parameters established in advance in an objective
and transparent manner, so as to prevent that compen-
sation from conferring an economic advantage which
might favour the recipient undertaking over competing
undertakings.

Not only the allocation of a proportion of the charges to a
public undertaking, but also the collection from users of the
proportion corresponding to the amount so allocated, may
constitute State aid incompatible with the common market. If
the aid has not been notified, it is for the national court to take
all measures necessary, under its national law, to prevent both
the allocation of a proportion of the charges to the recipient
undertakings and the collection of
the
charges;

that proportion of

The fact that the collection and allocation of a proportion of the
charges may be unlawful concerns only that proportion of the
charges paid to the public undertaking in question and does not
affect the charges as a whole.

2.

Charges, such as the port charges at
issue in the main
proceedings, constitute internal taxation within the meaning of
Article 95 of the EC Treaty (now, after amendment, Article 90
EC) not falling within the ambit of Article 12 or Article 30 of
the EC Treaty (now, after amendment, Articles 25 EC and 28
EC). In the absence of any unequal treatment discriminating
against goods from other Member States, the measure by virtue
of which a Member State provides for the collection of those
charges and the allocation of a significant proportion thereof to
a public undertaking, when the sum so allocated corresponds to
a service actually provided by that undertaking, does not infringe
Article 95.

(1) OJ C 79 of 10.3.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 November 2003

In Joined Cases C-34/01 to C-38/01 (Reference for a
preliminary ruling from the Corte Suprema di Cassa-
zione): Enirisorse SpA v Ministero delle Finanze (1)

(Public undertakings — Transfer to public undertakings of
a proportion of port charges paid to the State — Competition
— Abuse of a dominant position — State aid — Charge
having equivalent effect — Internal taxation — Free move-
ment of goods)

(2004/C 21/06)

(Language of the case: Italian)

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

In Joined Cases C-34/01 to C-38/01: Reference to the Court
under Article 234 EC by the Corte Suprema di Cassazione
(Italy) for a preliminary ruling in the proceedings pending
before that court between Enirisorse SpA and Ministero delle
Finanze, on the interpretation of Article 12 of the EC Treaty
(now, after amendment, Article 25 EC), Article 13 of the EC
Treaty (repealed by the Treaty of Amsterdam), Article 30 of
the EC Treaty (now, after amendment, Article 28 EC),
Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
86 EC), Article 92 of the EC Treaty (now, after amendment,
Article 87 EC), Article 93 of the EC Treaty (now Article 88 EC)
and Article 95 of the EC Treaty (now, after amendment,
Article 90 EC), the Court (Fifth Chamber), composed of:
the Fifth Chamber,
P.

Jann, acting for the President of