Enirisorse SpA v Ministero delle Finanze.
Date: 2003-11-27
28. It must be recalled that 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 Case C-280/00  Altmark Trans  [2003] ECR I-7747, paragraph 81).  It is all the more probable that trade could be affected in the cases in the main proceedings because the port charges are allocated to an undertaking established in a port and paid by shipping companies in respect of the loading and unloading of goods, whatever their provenance.
30. It must be borne in mind that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained in normal market conditions are regarded as aid ( Altmark Trans , cited above, paragraph 84).
31. On the other hand, 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 that the measure does not therefore 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.  However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans , paragraphs 87 and 88).
32. First, the recipient undertaking must actually have public-service obligations to discharge, and the obligations must be clearly defined ( Altmark Trans , paragraph 89).
33. The Court has earlier held that it does not follow from its case-law that the operation of any commercial port constitutes the operation of a service of general economic interest (Case C-242/95  GT-Link  [1997] ECR I-4449, paragraph 52).  Such activity does not therefore automatically involve the performance of public-service duties.
35. 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 its conferring an economic advantage which may favour the recipient undertaking over competing undertakings ( Altmark Trans , paragraph 90).
42. According to the Court ' s settled case-law, as a result of the direct effect which the last sentence of Article 93(3) of the Treaty has been held to have the immediate enforceability of the prohibition on implementation referred to in that article extends to all aid which has been implemented without being notified (Case C-354/90  Fédération nationale du Commerce Extérieur des Produits Alimentaires et Syndicat Nat ional des Négociants et Transformateurs de Saumon  [1991] ECR I-5505, paragraph 11).  It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (Case C-17/91  Lornoy and Others  [1992] ECR I-6523, paragraph 30).
43. The Court has held that the concept of State aid includes not only certain parafiscal charges, depending on the use to which the revenue from those charges is put (see, inter alia,  Lornoy and Others , paragraph 28), but also the collection of a contribution constituting a parafiscal charge (see Case C-72/92  Scharbatke  [1993] ECR I-5509, paragraph 20).
44. One of the Court ' s recent decisions also makes it clear that where the method by which aid is financed, particularly by means of compulsory contributions, forms an integral part of the aid measure,  consideration of the latter by the Commission must necessarily also take into account that method of financing the aid (Joined Cases C-261/01 and Case C-262/01  Van Calster and Others  [2003] ECR I-12249, paragraph 49).
45. It follows that it is not only the allocation of a proportion of the port charges to the undertaking concerned that may constitute State aid incompatible with the common market but also the collection from users of the proportion corresponding to the sum so allocated and that, if that aid has not been notified, it is for the national court to take all measures necessary, under national law, to prevent both the allocation of a proportion of the charges to the recipient undertakings and the collection of that proportion of the charges.
56. It ought to be borne in mind that, in accordance with the Court ' s settled case-law, the scope of Article 30 does not include provisions of the Treaty relating to charges having effect equivalent to customs duties (Article 12 of the Treaty and Article 16 of the EC Treaty, repealed by the Treaty of Amsterdam) or relating to discriminatory internal taxation (Article 95 of the Treaty) (see inter alia, to this effect, Case 74/76  Iannelli & Volpi  [1977] ECR 557, paragraph 9; Joined Cases C-78/90 to C-83/90  Compagnie Commerciale de l ' Ouest and Others  [1992] ECR I-1847), paragraph 20, and  Lornoy and Others , paragraph 14).
57. The Court stated that it must first be considered whether a measure such as those described in the cases giving rise to the judgments in  Compagnie Commerciale de l ' Ouest and Others  and  Lornoy and Others  falls within the scope of Article 12 or Article 95 of the Treaty, and only if the answer is in the negative need it be considered whether the measure under examination falls within the scope of Article 30 of the Treaty (see  Compagnie Commerciale de l ' Ouest and Others , paragraph 21, and  Lornoy and Others , paragraph 15).
59. It must furthermore be borne in mind that, according to established case-law, the provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, so that the same charge cannot, under the system established by the Treaty, belong to both those categories at the same time (see, in particular, Case C-234/99  Nygård  [2002] ECR I-3657, paragraph 17, and the case-law quoted there, and Case C-101/00  Tulliasiamies and Siilin  [2002] ECR I-7487, paragraph 115).
61. The judgment in Joined Cases C-277/91, C-318/91 and C-319/91  Ligur Carni and Others  [1993] ECR I-6621, referred to by the national court, does not contradict the reasoning above, for in the case giving rise to that judgment the Court had not been asked whether any impediment fell within the scope of Article 12 or 95 of the Treaty or of Article 30 thereof, and it had no need to consider such a question.  The point at issue in that case was a prohibition imposed on an importer of fresh meat from using its own means to transport and deliver its goods within the territory of a municipality, unless it paid a local undertaking, which held an exclusive concession for the handling of goods in the municipal slaughterhouse and their transport and delivery, the amount corresponding to the services provided (see  Ligur Carni and Others , paragraph 33).  The contested sums were thus paid directly to an undertaking and did not, unlike the sums at issue here in the main proceedings, constitute charges paid to the State.