Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht.
Date: 2003-07-24
41.  Although since 1 January 1996 the German legislature no longer makes general use of the power to derogate provided for in the second subparagraph of Article 1(1) of Regulation No 1191/69, it has indirectly made an exception to the application of that regulation for the benefit of urban, suburban and regional transport services which are provided commercially. Since that regulation authorises a general derogation, it was also open to the legislature to provide for a partial derogation. The principle that   "he who can do more, can do less"   applies in this case.
42.  The Commission submits that, where urban, suburban and regional transport services have not been excluded from the scope of Regulation No 1191/69 under the second subparagraph of Article 1(1), the national legislature must regulate the operation of a scheduled service either by imposing public service obligations, in accordance with Sections II to IV of the regulation, or by means of contracts providing for those obligations and complying with the provisions of Section V of the regulation.
Findings of the Court
43.  To answer this part of the question, it must first be determined whether Regulation No 1191/69 imposes binding rules which the Member States must comply with when they consider imposing public service obligations in the land transport sector.
53.  It is to be remembered that, as explained in paragraphs 44 to 47 above, Regulation No 1191/69 establishes a system which the Member States must comply with when they consider imposing public service obligations on undertakings in the land transport sector.
58.  The national legislation must, however, clearly delimit the use made of that option of derogation, so as to make it possible to determine the situations in which the derogation applies and those in which Regulation No 1191/69 applies.
59.  As the Court has consistently held, it is particularly important, in order to satisfy the requirement of legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts (see Case 29/84   Commission   v   Germany   [1985] ECR 1661, paragraph 23; Case 363/85   Commission   v   Italy   [1987] ECR 1733, paragraph 7; Case C-59/89   Commission   v   Germany   [1991] ECR I-2607, paragraph 18; and Case C-236/95   Commission   v   Greece   [1996] ECR I-4459, paragraph 13).
65.  It must further be stated that, should the national court decide that the principle of legal certainty was not complied with in the main proceedings, it will have to consider that Regulation No 1191/69 is fully applicable in Germany, and thus applies also to commercial operations. In that event, it will have to be ascertained whether the licences at issue in the main proceedings were granted in conformity with that regulation and, if so, whether the subsidies at issue in the main proceedings were granted in conformity with it. Where those licences and subsidies do not satisfy the conditions laid down by the regulation, the national court will have to conclude that they are not compatible with Community law, without it being necessary to consider them from the point of view of the provisions of the Treaty.
74.  To answer the first part of the question, the various elements of the concept of State aid in Article 92(1) of the Treaty must be considered. It is settled case-law that classification as aid requires that all the conditions set out in that provision are fulfilled (see Case C-142/87   Belgium   v   Commission   ( "Tubemeuse "  ) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92   Spain   v   Commission   [1994] ECR I-4103, paragraph 20; and Case C-482/99   France   v   Commission   [2002] ECR I-4397, paragraph 68).
75.  Article 92(1) of the Treaty lays down the following conditions. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.
78.  Where a Member State grants a public subsidy to an undertaking, the supply of transport services by that undertaking may for that reason be maintained or increased with the result that undertakings established in other Member States have less chance of providing their transport services in the market in that Member State (see, to that effect, Case 102/87   France   v   Commission   [1988] ECR 4067, paragraph 19; Case C-305/89   Italy   v   Commission   [1991] ECR I-1603, paragraph 26; and   Spain   v   Commission  , paragraph 40).
79.  In the present case, that finding is not merely hypothetical, since, as appears in particular from the observations of the Commission, several Member States have since 1995 started to open certain transport markets to competition from undertakings established in other Member States, so that a number of undertakings are already offering their urban, suburban or regional transport services in Member States other than their State of origin.
81.  Finally, according to the Court's case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see   Tubemeuse  , paragraph 43, and   Spain   v   Commission  , paragraph 42).
82.  The second condition for the application of Article 92(1) of the Treaty, namely that the aid must be capable of affecting trade between Member States, does not therefore depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned.
84.  Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings (Case 6/64   Costa   [1964] ECR 585, at p. 595) or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions (Case C-39/94   SFEI and Others   [1996] ECR I-3547, paragraph 60, and Case C-342/96   Spain   v   Commission   [1999] ECR I-2459, paragraph 41) are regarded as aid.
85.  Mention should, however, be made of the Court's decision in a case concerning an indemnity provided for by Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23). That indemnity was able to be granted to waste oil collection and/or disposal undertakings as compensation for the collection and/or disposal obligations imposed on them by the Member State, provided that it did not exceed the annual uncovered costs actually recorded by the undertakings taking into account a reasonable profit. The Court held that an indemnity of that type did not constitute aid within the meaning of Articles 92 et seq. of the Treaty, but rather consideration for the services performed by the collection or disposal undertakings (see Case 240/83   ADBHU   [1985] ECR 531, paragraph 3, last sentence, and paragraph 18).
86.  Similarly, the Court has held that, provided that a tax on direct sales imposed on pharmaceutical laboratories corresponds to the additional costs actually incurred by wholesale distributors in discharging their public service obligations, not assessing wholesale distributors to the tax may be regarded as compensation for the services they provide and hence not State aid within the meaning of Article 92 of the Treaty. The Court said that, provided there was the necessary equivalence between the exemption and the additional costs incurred, wholesale distributors would not be enjoying any real advantage for the purposes of Article 92(1) of the Treaty, because the only effect of the tax would be to put distributors and laboratories on an equal competitive footing (Ferring  , paragraph 27).
87.  It follows from those judgments that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 92(1) of the Treaty.
88.  However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied.
89.  First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. In the main proceedings, the national court will therefore have to examine whether the public service obligations which were imposed on Altmark Trans are clear from the national legislation and/or the licences at issue in the main proceedings.
90.  Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings.
91.  Payment by a Member State of compensation for the loss incurred by an undertaking without the parameters of such compensation having been established beforehand, where it turns out after the event that the operation of certain services in connection with the discharge of public service obligations was not economically viable, therefore constitutes a financial measure which falls within the concept of State aid within the meaning of Article 92(1) of the Treaty.
92.  Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Compliance with such a condition is essential to ensure that the recipient undertaking is not given any advantage which distorts or threatens to distort competition by strengthening that undertaking's competitive position.
93.  Fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined 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 discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.
94.  It follows from the above considerations that, where public subsidies granted to undertakings expressly required to discharge public service obligations in order to compensate for the costs incurred in discharging those obligations comply with the conditions set out in paragraphs 89 to 93 above, such subsidies do not fall within Article 92(1) of the Treaty. Conversely, a State measure which does not comply with one or more of those conditions must be regarded as State aid within the meaning of that provision.