CELEX: 62000CJ0409
Language: en
Date: 2003-02-13
Title: Judgment of the Court (Third Chamber) of 13 February 2003. # Kingdom of Spain v Commission of the European Communities. # State aid - Effect on competition and trade between Member States - Sectoral guidelines and guidelines on aid for environmental protection. # Case C-409/00.

Case C-409/00 Kingdom of SpainvCommission of the European Communities
            «(State aid – Effect on competition and trade between Member States – Sectoral guidelines and guidelines on aid for environmental protection)»
            
               
                  Opinion of Advocate General Alber delivered on 10 September 2002 
                     
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                  Judgment of the Court (Third Chamber), 13 February 2003  
                     
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            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)) 
         
                  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 – Commission 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 competition – 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 undertakings 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 question its selective nature and therefore, 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 differentiation arises from the nature and structure of the system of charges in question. However, the
         support provided 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 homogeneous 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 primarily on the Commission itself, does not
         therefore apply to aid granted to undertakings which carry out transport only on their own account. That exclusion 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 has been liberalised between the Member States satisfies
         that requirement. 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-competitive 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 investment or operating aid, the Commission
         cannot decide that aid cannot be authorised 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
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Third Chamber)13 February 2003  (1)
         
         
            
         
               ((State aid – Effect on competition and trade between Member States – Sectoral guidelines and guidelines on aid for environmental protection))
               
            In Case C-409/00, 
            
            
             Kingdom of Spain,  represented by M. López-Monís Gallego, acting as Agent, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
             Commission of the European Communities,  represented by D. Triantafyllou and S. Pardo, acting as Agents, with an address for service in Luxembourg,
            
            defendant, 
            
            APPLICATION for the annulment of Commission Decision 2001/605/EC of 26 July 2000 on the aid scheme implemented by Spain for
            the purchase of commercial vehicles under the Cooperation Agreement of 26 February 1997 between the Ministry for Industry
            and Energy and the Instituto de Crédito Oficial (OJ 2001 L 212, p. 34),
            
            
            THE COURT (Third Chamber),,
            
            composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, F. Macken and J.N. Cunha Rodrigues, Judges, 
            
            Advocate General: S. Alber, Registrar: H.A. Rühl, Principal Administrator, 
            
            
            having regard to the Report for the Hearing,after hearing oral argument from the parties at the hearing on 20 June 2002, at which the Kingdom of Spain was represented
            by S. Ortiz Vaamonde, acting as Agent, and the Commission was represented by D. Triantafyllou and S. Pardo,
            
            after hearing the Opinion of the Advocate General at the sitting on 10 September 2002,
         gives the following
         
         
         Judgment
         1
            
         By application lodged at the Court Registry on 10 November 2000, the Kingdom of Spain sought, under Article 230 EC, the annulment
         of Commission Decision 2001/605/EC of 26 July 2000 on the aid scheme implemented by Spain for the purchase of commercial vehicles
         under the Cooperation Agreement of 26 February 1997 between the Ministry for Industry and Energy and the Instituto de Crédito
         Oficial (OJ 2001 L 212, p. 34, hereinafter  
         the contested decision). 
         
            
               The facts and the contested decision
            
         
         2
            
         On 26 February 1997 the Spanish Ministry for Industry and Energy and the Instituto de Crédito Oficial (
         ICO) concluded a cooperation agreement setting up an aid scheme for the purchase of commercial vehicles (
         the Agreement). The Agreement entered into force retrospectively on 1 January 1997 and came to an end on 31 December 1997. 
         
         
         3
            
         The Agreement succeeded a similar aid scheme, which was the subject of Commission Decision 98/693/EC of 1 July 1998 concerning
         the Spanish Plan Renove Industrial aid scheme for the purchase of commercial vehicles (August 1994 ─ December 1996) (OJ 1998
         L 329, p. 23). According to Article 2 of that decision, the aid granted in the form of subsidies to natural persons or to
         small and medium enterprises (
         SME) engaged in a business other than transport on a solely local or regional level for the purchase of commercial vehicles of
         Category D does not constitute State aid. In Articles 3 and 4 of that decision, the Commission found that  
         all other aid granted to natural persons and SMEs constitute[d] State aid within the meaning of Article 92(1) of the Treaty, that it was illegal and incompatible with the common market and that the Kingdom of Spain must accordingly recover it. 
         
         
         4
            
         The Kingdom of Spain brought an action before the Court seeking the annulment of Articles 3 and 4 of Decision 98/693. By judgment
         of 26 September 2002 in Case C-351/98  
          Spain  v  
          Commission  [2002] ECR I-8031, the Court upheld that action. 
         
         
         5
            
         In the present case, the Agreement is intended to support the renewal of the commercial vehicle fleet in Spain by encouraging
         natural persons who are self-employed and undertakings which meet the Community definition of SME to acquire new vehicles
         to replace their old ones. 
         
         
         6
            
         To that end, the Agreement provides that natural persons registered for Spanish commercial tax and SMEs are entitled to a
         loan for a maximum duration of four years, without a grace period, to cover up to 70% of the eligible costs. The loan is subsidised
         to a maximum of ESP 85 000 for each ESP 1 000 000 borrowed, or approximately EUR 511 for each EUR 6 010 borrowed. The subsidy
         equivalent of the measure is thus 8.5%. 
         
         
         7
            
         The grant of such a loan is subject to three cumulative conditions. First, the natural person or SME concerned must purchase
         a new commercial vehicle or lease it with the intention to purchase. Second, it must present a document issued by the Directorate-General
         for Traffic to certify that another commercial vehicle has been irrevocably withdrawn for scrapping. The vehicle concerned
         must have been registered in Spain for at least seven years in the case of tractor units and for ten years in all other cases.
         Third, the vehicle sent for scrapping must, as a rule, have a load capacity equal to that of the vehicle purchased. 
         
         
         8
            
         In order to facilitate application of the last condition, the Agreement identifies six categories of vehicles: tractor units
         and lorries with a maximum authorised weight of 30 tonnes (Category A), lorries with a maximum authorised weight of between
         12 and 30 tonnes (Category B), lorries with a maximum authorised weight of between 3.5 and 12 tonnes (Category C), car-based
         vehicles, vans and lorries with a maximum authorised weight of up to 3.5 tonnes (Category D), buses and coaches (Category
         E) and trailers and semi-trailers (Category F). 
         
         
         9
            
         As regards the financing and conditions of award of the loans, the Agreement provides that the ICO will open a line of credit
         of a maximum amount of ESP 35 billion and conclude contracts with public and private financial bodies which will grant subsidised
         loans to natural persons and SMEs. The difference between the rate of interest applied by the ICO and the rate of interest
         normally applied to this type of transaction will be compensated up to a maximum of 4.5 percentage points, by the Ministry
         for Industry and Energy. The total amount of the intervention by the Kingdom of Spain involved is estimated at ESP 3 billion,
         or approximately EUR 18 million. 
         
         
         10
            
         By letter of 26 February 1997, the Spanish authorities informed the Commission of the Agreement, in accordance with Article
         93(3) of the EC Treaty (now Article 88(3) EC). 
         
         
         11
            
         By letter of 3 April 1997, the Commission requested further information from the Spanish authorities, who asked on three occasions
         for extra time to send the information. However, on expiry of the last time-limit granted by the Commission the Spanish authorities
         had not sent any further information. 
         
         
         12
            
         By letter of 20 November 1997 the Commission informed the Spanish authorities, first, that as the aid scheme was retroactive
         it would be treated as non-notified aid and second, of its decision to open the procedure laid down in Article 93(2) of the
         Treaty. The Commission published that letter in the  
          Official Journal of the European Communities  (OJ 1999 C 29, p. 14) and invited interested parties to submit their observations. 
         
         
         13
            
         By letter of 22 February 1999, the Kingdom of Spain submitted its observations to the Commission. No other Member State or
         third party sent observations. In those circumstances the Commission adopted the contested decision. 
         
         
         14
            
         Having set out the procedure, described the general scheme of the Agreement and summarised the observations made by the Kingdom
         of Spain, the Commission found in part IV of the grounds for the contested decision that the aid scheme for the purchase of
         commercial vehicles must be treated as State aid within the meaning of Article 92(1) of the EC Treaty (now, after amendment,
         Article 87(1) EC). 
         
         
         15
            
         The Commission pointed out, first, that the credits allocated for the financing of the aid scheme came from the budget of
         the Ministry for Industry and Energy. The financial support at issue was thus granted through State resources. 
         
         
         16
            
         Second, the Agreement favoured certain undertakings. The scope  
          ratione materiae  of the Agreement was limited to the six categories of commercial vehicles listed in it, and only the natural persons or undertakings
         who engaged in transport operations either on their own account or for others, by means of a vehicle belonging to one or other
         of those categories, were entitled to the loans at issue. The aid scheme was therefore selective as to the scope and beneficiaries.
         
         
         
         17
            
         Third, the aid scheme introduced a mechanism with an effect equivalent to that of a subsidy, in so far as it had the effect
         of reducing the costs normally born by the natural persons and SMEs who were the beneficiaries. The aid scheme therefore distorted
         competition to the detriment of the other economic operators in the sector. 
         
         
         18
            
         Fourth, the aid scheme introduced discrimination as between carriers established in Spain and non-resident carriers, and that
         discrimination took effect in the road transport sector, which had been opened to intra-Community competition by measures
         concerning both international transport and cabotage. As a consequence, the Commission found that the aid scheme affected
         trade between Member States. 
         
         
         19
            
         However, in Article 1 of the contested decision the Commission recognised that when the beneficiary was engaged in a business
         not in the transport sector and operated on a solely local or regional level and the financial support granted to that beneficiary
         was confined to the purchase of small commercial vehicles in Category D, which are generally used for short journeys, that
         support could not be considered to affect trade between Member States. It concluded that financial support of that type was
         not State aid within the meaning of Article 92(1) of the Treaty. 
         
         
         20
            
         Finally, in relation to financial support other than that described in the preceding paragraph, the Commission stated that
         it could not be justified on the basis of the  
          de minimis  rule, under which aid which is small and therefore unlikely to distort competition or to affect trade between Member States
         does not fall within Article 92(1) of the Treaty. It was clear from the Commission's notice of 1992 on Community guidelines
         on State aid for small and medium-sized enterprises (OJ 1992 C 213, p. 2,  
         1992 Guidelines on aid for SMEs), and the Commission notice on the  
          de minimis  rule for State aid (OJ 1996 C 68, p. 9, the  
          de minimis  notice) that the rule did not apply to the transport sector, on the ground that that sector is characterised by the presence of
         a high number of small undertakings and that relatively small sums are thus likely to have repercussions on competition and
         on trade between Member States. The aid scheme at issue ultimately benefited undertakings effecting transport operations on
         their own account or for others. It followed that the  
          de minimis  rule was not applicable. 
         
         
         21
            
         The Commission concluded that the financial aid granted under the Agreement to natural persons registered for Spanish commercial
         tax or to SMEs, other than the aid referred to in paragraph 19 above, must be considered to be State aid and was thus, in
         principle, incompatible with the common market. 
         
         
         22
            
         The Commission also stated that the aid was illegal. In particular, it was not possible for it to be covered by the derogation
         provided for by Article 92(3)(c) of the Treaty, under which aid intended to facilitate the development of certain activities
         or of certain economic regions, when it does not affect trading conditions to an extent contrary to the common interest, can
         be considered to be compatible with the common market. The aid scheme at issue did not satisfy the conditions laid down by
         that provision. It was not intended to facilitate the development of an economic activity and its effect on trade went beyond
         what was justified by the common interest. 
         
         
         23
            
         As to the intended use of the aid at issue, the Commission recalled that its information on Community guidelines on State
         aid for environmental protection (OJ 1994 C 72, p. 3,  
         Guidelines on environmental aid) made it clear that State aid could be covered by the derogation provided for in Article 92(3)(c) of the Treaty on the ground
         that it improved road safety and contributed to the protection of the environment only if the aid was for the additional investment
         costs necessary to attain higher standards imposed by law or to satisfy new environmental standards. The aid scheme at issue
         was only intended to encourage replacement of the fleet of commercial vehicles, without regard to objectives relating to the
         environment or to road safety. 
         
         
         24
            
         As to the effect of the aid at issue on trade, the Commission held that in a market such as road transport, which was characterised
         by overcapacity, aid for the purchase of vehicles was generally contrary to the common interest even if its sole aim was to
         replace the existing means of transport. Moreover, the aid intended to relieve certain undertakings of the costs which they
         would normally bear in the course of their business was considered to be by its very nature contrary to the common interest.
         It could not, therefore, come within the scope of the derogation provided for by Article 92(3)(c) of the Treaty. 
         
         
         25
            
         Consequently, the Commission held, in Article 2 of the contested decision, that the aid at issue ─ with the exception of that
         referred to in paragraph 19 above ─ was incompatible with the common market and, in Article 4, that the Kingdom of Spain must
         recover it without delay. 
         Forms of order sought
         
         26
            
         The Kingdom of Spain claims that the Court should: 
         
         
         ─
            annul the contested decision; 
         
         
         
         ─
            order the Commission to pay the costs. 
         
         
         
         
         27
            
         The Commission contends that the Court should: 
         
         
         ─
            dismiss the action as unfounded; 
         
         
         
         ─
            declare the plea for annulment based on the too general nature of the operative part of the contested decision inadmissible,
            or alternatively as ineffective or unfounded; 
         
         
         
         ─
            order the Kingdom of Spain to pay the costs. 
         
         
         The application
         
         28
            
         The Kingdom of Spain relies on three pleas in support of its action for annulment. 
         
         
         29
            
         The first plea alleges that the operative part of the contested decision is altogether too general: Article 1 refers to the
         particular financial aid which cannot be classified as State aid within the meaning of Article 92(1) of the Treaty, but Spanish
         law does not enable it to be distinguished in any way from the aid held to be incompatible with the common market in Article
         2 of the same decision and which must therefore be recovered. 
         
         
         30
            
         By the second plea, the Kingdom of Spain submits that the Commission has made a manifest error of assessment in finding that
         the aid at issue fell within the scope of Article 92(1) of the Treaty, although it is not selective in nature and does not
         involve any distortion of competition. 
         
         
         31
            
         The third plea alleges infringement of Article 92(3)(c) of the Treaty, in that the Commission wrongly held that the aid at
         issue could not be authorised on the basis of the derogation provided for by that provision. 
         
         
         32
            
         Since the examination of the first plea is only necessary if the second and third pleas are dismissed, judgment must first
         be given on those pleas. 
         The second plea: infringement of Article 92(1) of the Treaty
         
         
         33
            
         The Kingdom of Spain submits by its second plea that the aid at issue does not constitute State aid within the meaning of
         Article 92(1) of the Treaty. The plea consists of two parts: first, the aid is not by nature selective and second, it is not
         of such a nature as to distort or threaten to distort competition and has no effect on trade between Member States. 
          The first part, alleging that the Commission wrongly held that the aid issue was by nature selective 
         Parties' arguments
         
         
         34
            
         First, the Kingdom of Spain takes issue with the Commission's finding that the legal structure of the Agreement favoured certain
         categories of natural or legal persons. 
         
         
         35
            
         The Agreement covers in a general manner all the potential beneficiaries. It is true that the very existence of the conditions
         set out in paragraph 7 above has the consequence that a natural or legal person who does not satisfy them cannot, as a result,
         be eligible for a loan; however, that fact, which only requires the beneficiaries to be in an objectively identical position,
         does not involve any selectivity prohibited by Article 92(1) of the Treaty. 
         
         
         36
            
         The Kingdom of Spain does not deny that the Agreement expressly excludes large undertakings from its scope, but observes that
         the aid scheme at issue is part of the system of support for the protection of the environment, road safety and renewal of
         vehicles on the road. The exclusion of large undertakings, which replace their vehicles more regularly and without any need
         for aid for that purpose, is required by the general scheme, in accordance with Commission Decision 96/369/EC of 13 March
         1996 concerning fiscal aid given to German airlines in the form of a depreciation facility (OJ 1996 L 146, p. 42). In those
         circumstances, the Commission should have held that there was no selectivity. 
         
         
         37
            
         Second, the Commission wrongly found that the Agreement was selective on the ground that it only concerned certain categories
         of commercial vehicles. The Agreement identifies the six categories of vehicles listed in paragraph 8 above solely for the
         purpose of enabling beneficiaries to ensure that they satisfy the condition of equivalent loading capacity, and the competent
         authorities to check  compliance with that condition. In any event, the categories cover all commercial vehicles. 
         
         
         38
            
         Third, the Kingdom of Spain claims that the Commission made a manifest error of assessment in finding that if the scheme was
         not selective  
          de jure  it was so  
          de facto . From the judgment in Case C-75/97  
          Belgium  v  
          Commission  [1999] ECR I-3671, paragraph 28, it is to be inferred by analogy that the fact that the aid at issue actually benefited certain
         undertakings does not justify the conclusion that there is State aid. That inference is in accordance with the Commission's
         practice, as stated,  
          inter alia , in its Notice on monitoring of State aid and reduction of labour costs (OJ 1997 C 1, p. 10). 
         
         
         39
            
         Finally, in assessing the aid at issue account should be taken of the notion of  
         specific subsidy adopted by the Agreement on Subsidies and Countervailing Measures (
         the Agreement on subsidies in Annex 1A to the Agreement establishing the World Trade Organisation, approved on behalf of the Community, as regards matters
         within its competence, by Council Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1)).  Article 2(1)(b) of the Agreement
         on subsidies states that  
         where the granting authority, or the legislation pursuant to which the  granting authority operates, establishes objective
         criteria or conditions ... specificity shall not exist.  The term  
         objective criteria is to be read, in accordance with footnote 2 to the Agreement, as meaning  
         objective criteria or conditions which are neutral, which do not favour certain enterprises over others, and which are economic
         in nature and horizontal in application, such as number of employees or size of enterprise.  In the light of those provisions, it must be recognised that the aid at issue is not specific and as a consequence falls
         outside the definition of State aid within the meaning of Article 92(1) of the Treaty. 
         
         
         40
            
         The Commission replies that the aid is by nature selective. 
         
         
         41
            
         First, as regards the general structure of the Agreement, the Commission submits in the first place that the Kingdom of Spain's
         argument based on the horizontal conditions of application and objectives of the aid scheme at issue cannot be entertained.
         It is clear from the Court's case-law that such conditions are one of the characteristic elements of an aid scheme as opposed
         to individual aid. The argument would thus have the consequence, if accepted, that all aid schemes would automatically be
         excluded from the scope of Article 92(1) of the Treaty. 
         
         
         42
            
         In the second place the justification based on the existence of a system of charges in the general interest excluding large
         undertakings on the grounds of economic rationality cannot succeed. Firstly, that justification might be admissible in the
         context of schemes in the general interest, such as a tax or social security scheme, but not in the context of an aid scheme,
         even if it pursues legitimate aims. On that point, the Commission refers to Case C-56/93  
          Belgium  v  
          Commission  [1996] ECR I-723, paragraph 79, Case C-241/94  
          France  v  
          Commission  [1996] ECR I-4551, paragraph 20, Case C-75/97  
          Belgium  v  
          Commission  (cited above), paragraph 25, and Case T-55/99  
          CETM  v  
          Commission  [2000] ECR II-3207, paragraph 53. Secondly, even if that justification was admissible, the Kingdom of Spain has not produced
         evidence of the existence of such a system of charges in the general interest. Thirdly, if it were sufficient, in order to
         demonstrate that the aid scheme at issue pursues general aims, to establish, by that fact alone, the existence of a system
         of charges in the general interest likely to fall outside the definition of State aid, the Kingdom of Spain has not shown
         how the exclusion of large undertakings, required for the system to operate, can be considered not to be selective. 
         
         
         43
            
         Next, the Commission contends that the argument that measures which benefit certain undertakings more than others are not
         necessarily selective within the meaning of Article 92(1) of the Treaty should also be dismissed. It is taken from the specific
         area of measures to support employment and cannot reasonably be transposed to the present case. On the contrary, the position
         of the Court on export aid (Joined Cases 6/69 and 11/69  
          Commission  v  
          France  [1969] ECR 523, paragraph 21, and Case 57/86  
          Greece  v  
          Commission  [1988] ECR 2855, paragraph 8) should be applied by analogy so as to hold that an aid scheme which may benefit all natural
         persons and SMEs using commercial vehicles to the exclusion of natural persons and SMEs who do not use such vehicles may constitute
         State aid. That approach is in accordance with the position taken in the 1996 Information from the Commission ─ Community
         guidelines on State aid for small and medium-sized enterprises (OJ 1996 C 213, p. 4,  
         1996 Guidelines for aid to SMEs). 
         
         
         44
            
         Finally, the Commission states that there is no need to assess the lawfulness of the aid at issue in the light of the Agreement
         on subsidies, which does not have the same purpose as Article 92(1) of the Treaty. 
         Findings of the Court
         
         
         45
            
         Article 92(1) of the Treaty defines State aid generally incompatible with the common market as being aid granted by a Member
         State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain
         undertakings or the production of certain goods, in so far as it affects trade between Member States. 
         
         
         46
            
         It must be noted at the outset that that provision does not distinguish between the causes or the objectives of State aid,
         but defines them in relation to their effects (Case C-56/93  
          Belgium  v  
          Commission , paragraph 79, Case C-241/94  
          France  v  
          Commission , paragraph 20, and Case C-75/97  
          Belgium  v  
          Commission , paragraph 25). 
         
         
         47
            
         It follows that the application of Article 92(1) of the Treaty 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 (Case C-143/99  
          Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 41; see also to that effect Case C-200/97  
          Ecotrade  [1998] ECR I-7907, paragraph 41, and Case C-75/97  
          Belgium  v  
          Commission , cited above, paragraph 26). If so, the measure satisfies the condition of selectivity which defines State aid as laid down
         by that provision. 
         
         
         48
            
         The fact that the number of undertakings 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 question its selective nature and therefore, to rule
         out its classification as State aid (Case C-75/97  
          Belgium  v  
          Commission , paragraph 32 and  
          Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraph 48). 
         
         
         49
            
         In the present case, it is clear in the first place from the file that the structure of the aid scheme set up by the Agreement,
         in so far as it is intended to favour, and does in fact favour, natural persons and SMEs carrying on transport operations
         on their own account or for another, is by nature selective. The argument relied on by the Kingdom of Spain, that the Agreement
         is governed by objective criteria of horizontal application, is irrelevant: it can only serve to show that the aid at issue
         falls within an aid scheme and is not individual aid. 
         
         
         50
            
         Second, the Agreement expressly excludes large undertakings, even if they had purchased or were likely to purchase a new commercial
         vehicle during the period of application of the aid scheme and therefore contributed, in the same way as natural persons and
         SMEs, to the aim of renewing vehicles on the road. 
         
         
         51
            
         The Kingdom of Spain submits, however, that that exclusion must be seen as precisely the consequence of the system of charges
         in the general interest of which the aid at issue forms part. 
         
         
         52
            
         The Court has consistently held that the definition of State aid does not include national measures introducing a differentiation
         between undertakings when that differentiation arises from the nature and structure of the system of charges of which they
         form part. Where that is the case, the measure at issue cannot, as a rule, be considered to be selective, even if it gives
         an advantage to the undertakings who are able to benefit from it (see, to that effect, Joined Cases C-72/91 and C-73/91  
          Sloman Neptun  [1993] ECR I-887, paragraph 21). 
         
         
         53
            
         However, in the present case, the Kingdom of Spain has not produced any evidence of the existence of a system of charges in
         the general interest. At best, it has set out the grounds of general interest to which it is the aim or effect of the aid
         scheme at issue to contribute, that is, the protection of the environment and road safety. 
         
         
         54
            
         Those grounds, however legitimate, and supposing them to be established, are ineffective at the stage of the assessment of
         a national measure with regard to Article 92(1) of the Treaty, as was noted at paragraph 46 above. 
         
         
         55
            
         In any event, the charges concerned in the present case arise as a result of the need of undertakings to replace their commercial
         vehicles. Therefore, the aid at issue consists of a reduction of the charges which, in normal commercial circumstances, come
         out of the budgets of those undertakings (
          Spain  v  
          Commission , paragraph 43). It follows that they cannot be considered to be part of the nature and general scheme of any system of charges
         in the general interest and that therefore the Commission rightly held that they were by nature selective. 
         
         
         56
            
         Moreover, the fact that the contested aid might not be considered to be a  
         specific subsidy under the Agreement on subsidies cannot cut down the scope of the definition of aid in Article 92(1) of the Treaty (
          Spain  v  
          Commission , paragraph 44). 
         
         
         57
            
         As a consequence, and without there being any need to examine the other arguments raised by the Kingdom of Spain, the first
         part of the second plea must be dismissed. 
         The second part, alleging that the Commission wrongly held that the aid at issue affected competition and trade between Member
         States and was in any event discriminatory
         Arguments of the parties
         
         
         58
            
         As regards the alleged effect of the aid at issue on competition and on trade between Member States, the Kingdom of Spain
         argues that the Commission disregarded the provisions of the Treaty applicable to State aid by refusing to apply the  
          de  minimis  rule. Even if the natural and legal persons eligible for the aid at issue belonged, as the Commission claims, to the transport
         sector, the aid is less than the EUR 100 000 threshold per three years below which Article 92(1) of the Treaty is not applicable.
         That should have led the Commission to conclude that the aid at issue does not constitute State aid within the meaning of
         that provision. 
         
         
         59
            
         The Commission replies that it would have been unlawful to apply the  
          de  minimis  rule. In any case the aid at issue distorts competition. 
         
         
         60
            
         The Commission argues that the beneficiaries of the aid scheme belong to the transport sector, and that the Kingdom of Spain
         does not deny that that sector is excluded from the scope of the  
          de minimis  rule but simply asks that the rule be applied in this case by way of exception. 
         
         
         61
            
         The Commission submits that the express wording of the notice on the  
          de  minimis  rule, and the fact that the rule that it articulates, as a derogation from Article 92(1) of the Treaty, must be strictly
         interpreted, means that there can be no exception. The Court of First Instance confirmed that interpretation at paragraph
         130 of the judgment in  
          CETM  v  
          Commission . The Commission also relies on the legal effect of the notices and guidelines that it has drawn up on State aid. Such acts
         are binding, primarily on the Commission itself, as it is clear in particular from Case C-313/90  
          CIRFS and Others  v  
          Commission  [1993] ECR I-1125, paragraphs 34 to 36, and Case T-149/95  
          Ducros  v  
          Commission  [1997] ECR II-2031, paragraph 61. Consequently, the Kingdom of Spain has no basis for asking the Commission to derogate,
         in favour of the aid at issue, from the conditions of application of the  
          de  minimis  rule. 
         
         
         62
            
         The Commission points out again that the sector of road transport for goods is characterised by strong competition between
         numerous SMEs. The Court has held that in such a situation relatively small amounts of aid are liable to affect competition
         (Case C-303/88  
          Italy  v  
          Commission  [1991] ECR I-1433, paragraph 27), taking account in particular of their cumulative effect. It follows that Article 92(1)
         of the Treaty always applies to such aid, even when it is of an amount such that the  
          de  minimis  rule generally should be applied to it (Case T-214/95  
          Vlaamse Gewest  v  
          Commission  [1998] ECR II-717, paragraph 46). 
         
         
         63
            
         In any event, the Commission contends that the aid for the purchase of commercial vehicles, by the simple fact that it is
         mainly granted to SMEs operating in a sector of activity which Community provisions have made open to competition distorts
         or threatens to distort competition, to the detriment of undertakings established in other Member States. 
         
         
         64
            
         As regards the alleged discriminatory character of the aid at issue, the Kingdom of Spain maintains that the Agreement does
         not introduce any differentiation as between Spanish nationals and nationals of other Member States. First, eligibility under
         the Agreement does not depend on the purchaser of the commercial vehicle either having Spanish nationality or being established
         in Spain. Next, the second condition set out at paragraph 7 above, according to which the beneficiary of the aid must present
         a document to certify that a commercial vehicle registered in Spain for at least seven years in the case of a tractor unit
         and for at least ten years in all other cases has been irrevocably withdrawn from circulation, does not constitute discrimination
         against nationals of Member States other than Spain. Since it is not necessary for the purchaser of the new vehicle to be
         also the owner of the vehicle replaced, the purchaser has the possibility of concluding a contract with a third party, the
         owner of the vehicle duly registered in Spain, in order to benefit from the Agreement. Finally, the requirement of registration
         in Spain applies to vehicles made in Spain and imported vehicles alike. 
         
         
         65
            
         In short, if in practice few nationals of Member States other than Spain prove to have obtained the aid at issue, that is
         explained by factual circumstances independent of the aid scheme, for example the fact that those nationals prefer to apply
         for aid or financing in their own Member State. 
         
         
         66
            
         The Commission replies that the arguments relied on in that regard by the Kingdom of Spain are invalid or at least unfounded,
         on the ground that the condition of registration in Spain itself constitutes prohibited discrimination. 
         Findings of the Court
         
         
         67
            
         A distinction must be made at the outset between the aid granted to natural or legal persons operating transport on their
         own account (
         non-professional transport companies) and the aid granted to natural or legal persons doing so for others (
         professional transport companies). It is clear from the different situations of those two categories of beneficiaries that they do not belong to the same
         sector and do not operate in the same market (Case C-351/98  
          Spain  v  
          Commission , paragraph 48). 
         
         
         68
            
         As regards first the aid at issue granted to non-professional transport companies, it is clear from the judgment referred
         to in the previous paragraph that while the Commission was entitled to examine the effect on the transport sector of the grant
         of such aid, it could not simply treat non-professional transport companies as if they were professional transport companies
         (
          Spain  v  
          Commission , paragraph 49). 
         
         
         69
            
         The Commission is of course entitled to take the view, in the notices and guidelines that it draws up in accordance with the
         Treaty and in the exercise of its discretion in evaluating the potential economic effects of aid measures, that other than
         in certain sectors where competitive conditions are of a particular kind, aid below certain amounts does not affect trade
         and is therefore not caught by Articles 92 and 93 of the Treaty. However, those notices and guidelines apply primarily to
         the Commission itself (
          Spain  v  
          Commission , paragraphs 52 and 53). 
         
         
         70
            
         Whilst the transport sector is expressly excluded by the  
          de  minimis  notice and the guidelines on aid to SMEs of 1992 and 1996 from the scope of the  
          de  minimis  rule, that exception must be subject to strict interpretation. Therefore, it cannot be extended to non-professional transport
         companies. 
         
         
         71
            
         It follows that the Commission was not entitled to refuse to consider whether the aid at issue fell within the  
          de  minimis  rule in so far as it was granted to non-professional transport companies (see, to that effect,  
          Spain  v  
          Commission , paragraph 50). 
         
         
         72
            
         It is clear from the documents before the Court that the aid at issue was on each occasion of a maximum amount of EUR 511
         for EUR 6 010 borrowed. Although certain non-professional transport companies might have been able during the year that the
         Agreement was in force to obtain several support measures, with the consequence that the total amount of aid received by them
         was greater than EUR 100 000, it is impossible to preclude a priori application of the  
          de  minimis  rule to that category of undertakings. 
         
         
         73
            
         In those circumstances, Articles 2 and 4 of the contested decision must be annulled in so far as they relate to aid granted
         to non-professional transport companies of amounts below the  
          de minimis  threshold laid down in the Commission's notices and guidelines in force at the time when the aid was granted. 
         
         
         74
            
         Second, as regards aid which may have been granted to non-professional transport companies for an amount greater than the
          
          de  minimis  threshold, in certain cases the very circumstances in which aid is granted may 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 (see Joined Cases 296/82 and 318/82  
          Netherlands and Leeuwarder Papierwarenfabriek  v  
          Commission  [1985] ECR 809, paragraph 24, Joined Cases C-329/93, C-62/95 and C-63/95  
          Germany and Others  v  
          Commission  [1996] ECR I-5151, paragraph 52, and Joined Cases C-15/98 and C-105/99  
          Italy and Sardegna Lines  v  
          Commission  [2000] ECR I-8855, paragraph 66). 
         
         
         75
            
         The contested decision contains an assessment of the effect of the aid at issue on the transport sector. At paragraphs 24
         and 25 of the statement of reasons for the contested decision the Commission observed, without being contradicted on that
         point by the Kingdom of Spain, that the aid was likely to help the beneficiaries compete with large undertakings established
         in Spain. The Commission also stated that the liberalisation of road transport had led to intra-Community competition in the
         international transport and cabotage sector. Those reasons are sufficient to describe the real or potential effect of the
         aid on competition and its effect on trade between Member States (
          Spain  v  
          Commission , paragraph 58). 
         
         
         76
            
         Third, as regards the aid granted to professional transport companies in an amount less than the  
          de  minimis  threshold, it must be recalled that when aid is granted to entities operating in a sector to which the  
          de  minimis  rule does not apply, and when that sector is characterised by strong competition, aid of relatively little importance can
         affect competition and trade between Member States (Case 259/85  
          France  v  
          Commission  [1987] ECR 4393, paragraph 24,  
          Italy  v  
          Commission , paragraph 27, and  
          Spain  v  
          Commission , paragraph 63). 
         
         
         77
            
         The Commission has pointed out in this case, without being contradicted by the Kingdom of Spain, that there is necessarily
         strong competition in a sector which has overcapacity, such as the transport sector. Unless it appears that certain operators
         in the sector have adopted anti-competitive behaviour, which neither party submits is true in this case, those grounds are
         sufficient to establish first, that the aid at issue falls within the scope of Article 92(1) of the Treaty and, second, that
         it distorts or threatens to distort competition and affect trade between Member States within the meaning of that provision.
         
         
         
         78
            
         Finally, where the aid granted to professional transport companies exceeds the  
          de  minimis  threshold, the grounds of the contested decision set out at paragraph 75 above are  
          a fortiori  applicable to them. 
         
         
         79
            
         As there is no need to rule on the other arguments put forward by the Kingdom of Spain, it follows from the above that the
         second part of the second plea must be upheld in so far as the amount of the aid at issue granted to non-professional transport
         companies was less than the  
          de  minimis  threshold, and must be rejected for the rest. 
         The third plea, alleging, first, infringement of Article 92(3)(c) of the Treaty, and second, insufficient and inconsistent
         reasoning of the contested decision
         Arguments of the parties
         
         
         80
            
         The Kingdom of Spain submits that if the aid at issue constituted State aid, the Commission should have authorised it on the
         basis of the derogation laid down in Article 92(3)(c) of the Treaty on the ground that it is justified by objectives relating
         to the protection of the environment and improvement of road safety. 
         
         
         81
            
         The Commission made several errors in the assessment and classification of the aid scheme at issue. 
         
         
         82
            
         It wrongly refused to accept that the Agreement had a definite impact on the protection of the environment and on road safety.
         By the very fact that it aims to renew the Spanish fleet of commercial vehicles, in principle without altering capacity, the
         aid scheme enables the average age of those vehicles to be lowered, and as a consequence the level of emission of gaseous
         pollutants (CO
          2  and NO
          2 ) to be reduced. For the same reasons the aid scheme guarantees improved road safety. 
         
         
         83
            
         Several legal consequences follow from that incorrect assessment. 
         
         
         84
            
         First, as regards the protection of the environment, the Commission disregarded Article 92(3)(c) of the Treaty, founding its
         argument on the Guidelines for environmental aid in order to refuse authorisation for the aid at issue, in so far as it constituted
         investment aid. The relevant provisions of those guidelines, which state that investment aid is only permissible for the purpose
         of Article 92(3)(c) if it is strictly limited to the additional costs necessary to attain higher standards than those imposed
         by law or to satisfy new obligatory standards in environmental matters, are to be regarded as a body of rules indicative of
         the practice that the Commission intends to follow and applicable without prejudice to the provision. As a consequence, the
         Guidelines for environmental aid cannot have the effect of confining the scope of that provision solely to the cases they
         envisage. It is clear that the aid at issue should have been authorised as investment aid even though it did not satisfy all
         the criteria specifically laid down by the Guidelines. 
         
         
         85
            
         It follows that the Commission wrongly found that the aid at issue was unlawful. 
         
         
         86
            
         If the aid was not investment aid but operating aid, the Commission wrongly held that it was in any event excluded from the
         scope of Article 92(3)(c) of the Treaty. It is clear from the case-law of the Court of First Instance that such aid may in
         certain circumstances fall within that provision (Case T-459/93  
          Siemens  v  
          Commission  [1995] ECR II-1675, paragraph 48, and Case T-67/94  
          Ladbroke Racing  v  
          Commission  [1998] ECR II-1, paragraphs 123 to 165). In addition, it is clear from several notices on State aid that operating aid may
         come within the scope of the provision. In Decision 2000/410/EC of 22 December 1999 on the aid scheme which France is planning
         to implement in favour of the French port sector (OJ 2000 L 155, p. 52), the Commission concluded that the operating aid was
         lawful, having regard to a range of factors, including the limited economic impact of the aid at issue, the fact that the
         beneficiaries were SMEs and the absence of objections by interested third parties. The same circumstances could be observed
         in this case. The Commission should therefore have accepted the validity of the aid at issue. 
         
         
         87
            
         Second, as regards road safety, the Kingdom of Spain argues that the Commission's reasoning is also vitiated by a manifest
         error. In any event, the statement of reasons is defective. It follows that even if the aid could not be justified on the
         ground of protection of the environment it should at least have been authorised on the ground of its contribution to road
         safety. 
         
         
         88
            
         Finally, the Kingdom of Spain submits that the contested decision is vitiated by contradictory or inadequate reasoning. The
         Commission classifies the aid at issue first as investment aid (paragraph 35 of the contested decision) and then as operating
         aid (paragraph 38 of the contested decision). 
         
         
         89
            
         The Commission replies that, contrary to the Kingdom of Spain's submission, the purpose of the aid scheme is not to improve
         protection of the environment or road safety. On the contrary, it is granted on the basis of the total value of the vehicle,
         without reference to excess costs relating to environmental or safety matters. At most it can be conceded that it has an incidental
         beneficial effect on those two areas. 
         
         
         90
            
         Such an effect is not sufficient to bring the aid at issue within the scope of Article 92(3)(c) of the Treaty. The Guidelines
         for environmental aid, which should be considered to be applicable to road safety by analogy, require, on the contrary, that
         the aid at issue be specifically intended for environmental protection. In addition, those guidelines provide that the aid
         must be limited to offsetting the excess costs strictly imposed on the undertakings concerned, which is clearly not the case
         in these proceedings. Furthermore, it is essential for the aid to be compatible with the common interest, whereas in this
         case certain factors such as overcapacity in the road transport sector indicate that for the aid scheme to be valid its aim
         ought to have been to reduce existing capacity rather than merely maintaining it. 
         
         
         91
            
         Next, the Commission argues that the aid at issue cannot be classified as investment aid. First, it does not have the ad hoc
         nature inherent in that category of aid. Second, it concerns charges attributable to undertakings in respect of their usual
         commercial activity. It follows that it must be classified as operating aid. The Commission refers on that point in particular
         to Joined Cases 62/87 and 72/87  
          Exécutif régional wallon  v  
          Commission  [1988] ECR 1573, paragraphs 31 to 34. 
         
         
         92
            
         Finally, the Commission submits that the statement of reasons for the contested decision is adequate in law and is not vitiated
         by contradictory reasoning. 
         Findings of the Court
         
         
         93
            
         In the application of Article 92(3)(c) of the Treaty the Commission has a wide discretion, the exercise of which involves
         complex economic and social assessments which must be made in a Community context (see, for example, Case 310/85  
          Deufil  v  
          Commission  [1987] ECR 901, paragraph 18). Judicial review of the manner in which that discretion is exercised is confined to establishing
         that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the
         accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts
         or misuse of powers (
          Spain  v  
          Commission , paragraph 74). 
         
         
         94
            
         Articles 92(3)(c) and 93 of the Treaty expressly state that the Commission  
         may consider aid covered by the first of those two provisions to be compatible with the common market. Accordingly, whilst the
         Commission must always determine whether State aid subject to review by it is compatible with the common market, even if that
         aid has not been notified to it (see Case C-301/87  
          France  v  
          Commission  (the  
          Boussac Saint Frères  case) [1990] ECR I-307, paragraphs 15 to 24), it is not bound to declare such aid compatible with the common market. 
         
         
         95
            
         However, as stated at paragraph 69 of the present judgment, the Commission is bound, first, by the guidelines and notices
         that it issues in the area of supervision of State aid where they do not depart from the rules in the Treaty and are accepted
         by the Member States. Secondly, under Article 253 EC, the Commission must give reasons for its decisions, including decisions
         refusing to declare aid compatible with the common market under Article 92(3)(c) of the Treaty (
          Spain  v  
          Commission , paragraph 76). 
         
         
         96
            
         It is clear from the Guidelines on environmental aid that it is essential that aid be classified as either aid for investment
         or operating aid. Different legal rules apply to each of those classifications (
          Spain  v  
          Commission , paragraphs 77 to 80). 
         
         
         97
            
         Examination of the contested decision in the present case does not reveal clearly whether the Commission considered the aid
         in question to be investment aid or operating aid. Thus, paragraph 35 of the grounds for the contested decision implies that
         the aid is for investment, whilst paragraph 38 gives the impression that it is operating aid. 
         
         
         98
            
         The statement of reasons required by Article 253 EC must explain clearly and unambiguously the reasoning followed by the Community
         authority which has adopted the contested act, so as to enable interested parties to take cognisance of the justifications
         for the measure for the purpose of defending their rights and to enable the courts to exercise their powers of review (
          Spain  v  
          Commission , paragraph 82). 
         
         
         99
            
         The contested decision is therefore vitiated by a defect in the statement of reasons concerning the incompatibility of the
         aid scheme provided for in the Agreement with the criteria laid down in the Guidelines on environmental aid. 
         
         
         100
            
         Having regard to the findings at paragraphs 79 and 99 of this judgment, and without it being necessary to examine the first
         plea in law relied on by the Kingdom of Spain, the action must therefore be upheld and Articles 2 and 4 of the contested decision
         must be annulled. 
         
         Costs
         101
            
         Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. Since the Kingdom of Spain has applied for costs and the Commission has been
         unsuccessful, the latter must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Third Chamber)
         
         
         hereby:
         
            
            1.
             Annuls Articles 2 and 4 of Commission Decision 2001/605/EC of 26 July 2000 on the aid scheme implemented by Spain for the
            purchase of commercial vehicles under the Cooperation Agreement of 26 February 1997 between the Ministry for Industry and
            Energy and the Instituto de Crédito Oficial; 
            
            
            2.
             Orders the Commission of the European Communities to pay the costs.
            
            
                  Puissochet 
               
               
                  Macken
               
               
                  Cunha Rodrigues 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 13 February 2003. 
         
         
         
         
                  R. Grass 
               
               
                  J.-P. Puissochet  
               
            
         
         
         
                  Registrar
               
               
                  President of the Third Chamber
               
            
      
      
          1 –
            
             Language of the case: Spanish.