CELEX: C2004/021/06
Language: en
Date: 2004-01-24 00:00:00
Title: 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)

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                 C. W. A. Timmermans, A. Rosas, D. A. O. Edward and S. von
      19 October 1992 on the harmonisation of the structures of              Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
      excise duties on mineral oils, and Article 5(1) of Council             H. von Holstein, Deputy Registrar, has given a judgment on
      Directive 92/82/EEC of 19 October 1992 on the approxi-                 27 November 2003, in which it has ruled:
      mation of the rates of excise duties on mineral oils;
2.    Orders the Republic of Finland to pay the costs;
                                                                             1.   A measure by which a Member State allocates to a public
                                                                                  undertaking a significant proportion of charges, such as the
3.    Orders the Kingdom of Sweden to bear its own costs.                         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
(1) OJ C 247 of 26.8.2000.                                                        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
                 JUDGMENT OF THE COURT                                                   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-
                          (Fifth Chamber)                                                sation from conferring an economic advantage which
                                                                                         might favour the recipient undertaking over competing
                                                                                         undertakings.
                      of 27 November 2003
                                                                                  Not only the allocation of a proportion of the charges to a
In Joined Cases C-34/01 to C-38/01 (Reference for a                               public undertaking, but also the collection from users of the
preliminary ruling from the Corte Suprema di Cassa-                               proportion corresponding to the amount so allocated, may
     zione): Enirisorse SpA v Ministero delle Finanze (1)                         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
(Public undertakings — Transfer to public undertakings of                         the allocation of a proportion of the charges to the recipient
a proportion of port charges paid to the State — Competition                      undertakings and the collection of that proportion of the
— Abuse of a dominant position — State aid — Charge                               charges;
having equivalent effect — Internal taxation — Free move-
                           ment of goods)
                                                                                  The fact that the collection and allocation of a proportion of the
                                                                                  charges may be unlawful concerns only that proportion of the
                           (2004/C 21/06)                                         charges paid to the public undertaking in question and does not
                                                                                  affect the charges as a whole.
                    (Language of the case: Italian)
                                                                             2.   Charges, such as the port charges at issue in the main
(Provisional translation; the definitive translation will be published            proceedings, constitute internal taxation within the meaning of
                   in the European Court Reports)                                 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
In Joined Cases C-34/01 to C-38/01: Reference to the Court
                                                                                  of which a Member State provides for the collection of those
under Article 234 EC by the Corte Suprema di Cassazione
                                                                                  charges and the allocation of a significant proportion thereof to
(Italy) for a preliminary ruling in the proceedings pending
                                                                                  a public undertaking, when the sum so allocated corresponds to
before that court between Enirisorse SpA and Ministero delle
                                                                                  a service actually provided by that undertaking, does not infringe
Finanze, on the interpretation of Article 12 of the EC Treaty
                                                                                  Article 95.
(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,                   (1) OJ C 79 of 10.3.2001.
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:
P. Jann, acting for the President of the Fifth Chamber,