Kingdom of Spain v Commission of the European Communities.
Date: 2003-02-13
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.
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).
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).
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).
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).
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).
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).
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).