Enirisorse SpA v Ministero delle Finanze.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: von Bahr
• ECLI: ECLI:EU:C:2003:640
• Date: 27 November 2003
• Docket Number: C-34/01,C-38/01
• Procedure Type: Reference for a preliminary ruling

Joined Cases C-34/01 to C-38/01


Enirisorse SpA
v
Ministero delle Finanze


(Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy))

«(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)»

Opinion of Advocate General Stix-Hackl delivered on 7 November 2002

Judgment of the Court (Fifth Chamber), 27 November 2003

Summary of the Judgment

1..

State aid – Definition – Measures intended to compensate for the cost of public-service duties carried out by an undertaking – Excluded – Conditions – Clearly defined public-service obligations – Establishment in an objective and transparent manner of the parameters for calculating the compensation – Compensation limited to cost – Unlawfulness of the measure allocating part of the charge to a public undertaking – Unlawfulness affecting only that part of the charge paid to the undertaking

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC))

2..

State aid – Planned aid – Prohibition of implementation before the Commission's final decision – Direct effect – Extent – Unnotified measure allocating to an undertaking part of a charge – Responsibility of the national courts to prevent the levying of the charge and the allocation of the revenue therefrom

(EC Treaty, Art. 93(3) (now Art. 88(3) EC))

3..

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Article 30 of the Treaty (now, after amendment, Article 28 EC) – Scope – Charge not constituting an impediment prohibited by Articles 12 or 95 of the Treaty (now, after amendment, Article 25 EC or Article 90 EC) – Charge automatically falling within the ambit of Article 30 of the Treaty – Excluded

(EC Treaty, Arts 12, 30 and 95 (now, after amendment, Arts 25, 28 and 90 EC))

4..

Tax provisions – Internal taxation – Port charges allocated to a public undertaking regardless of the service rendered by the latter – No discrimination against imported goods – Permissible

(EC Treaty, Arts 12, 30 and 95 (now, after amendment, Arts 25, 28 and 90 EC))

1.

The allocating by a Member State to a public undertaking of a significant proportion of charges, such as those levied in a port on all loading and unloading of goods, and the levying of those charges on the users, must be classified as State aid within the meaning of Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC) in so far as they affect trade between Member States, if they are not linked to clearly defined public-service duties, and/or the compensation allegedly necessary in order for those 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 compensation from conferring an economic advantage which might favour the recipient undertaking over competing undertakings. For that not to be the case, that compensation must not 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. None the less, the fact that the collection and allocation of a proportion of the charges, namely, the proportion paid to the public undertaking, may be unlawful, does not affect the rest of the charges paid into the public exchequer. see paras 31-32, 35, 39-40, 47, operative part 1

2.

As a result of the direct effect which the last sentence of Article 93(3) of the Treaty (now Article 88(3) EC) 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. 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 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. see paras 42, 47, operative part 1

3.

The scope of Article 30 of the Treaty (now, after amendment, Article 28 EC) does not include provisions of the Treaty relating to charges having effect equivalent to customs duties (Article 12 of the Treaty (now, after amendment, Article 25 EC)) and Article 16 of the Treaty (repealed by the Treaty of Amsterdam) or relating to discriminatory internal taxation (Article 95 of the Treaty (now, after amendment, Article 90 EC)). It follows that if charges, such as those collected in a port on all loading and unloading of goods, fall within the scope of Article 12 or Article 95 of the Treaty, it is one or other of those provisions that will apply and not Article 30 of the Treaty. If those charges should prove not to constitute an impediment prohibited by Article 12 or 95, the result would not be that they automatically fell within the ambit of Article 30. see paras 56, 58

4.

In the absence of any unequal treatment discriminating against goods from other Member States, a measure by virtue of which a Member State provides for the collection of internal taxation, such as port charges on the loading and unloading of goods, and the allocation of a significant proportion thereof to a public undertaking, when the sum so allocated corresponds to a service actually provided by that undertaking, does not infringe Article 95 of the Treaty (now, after amendment, Article 90 EC). see para. 62, operative part 2

JUDGMENT OF THE COURT (Fifth Chamber)
27 November 2003 (1)

((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))

In Joined Cases C-34/01 to C-38/01,

REFERENCE to the Court under Article 234 EC by the Corte Suprema di Cassazione (Italy) for a preliminary ruling in the proceedings pending before that court between Enirisorse SpA

and

Ministero delle Finanze, on the interpretation of Article 12 of the EC Treaty (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, 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, C.W.A. Timmermans, A. Rosas, D.A.O. Edward and S. von Bahr (Rapporteur), Judges, Advocate General: C. Stix-Hackl,
Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

─

Enirisorse SpA, by G. Guarino and A. Guarino, avvocati,

─

the Italian Government, by I.M. Braguglia, acting as Agent, assisted by G. Aiello, avvocato dello Stato,

─

the Commission of the European Communities, by V. Di Bucci and L. Pignataro-Nolin, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Enirisorse SpA, represented by L. Malvezzi Campeggi, avvocato, of the Italian Government, represented by G. Aiello, and of the Commission, represented by V. Di Bucci and L. Pignataro-Nolin, at the hearing on 5 March 2002,

after hearing the Opinion of the Advocate General at the sitting on 7 November 2002,

gives the following

Judgment

1

By five orders of 12 July 2000, received at the Court on 25 January 2001, the Corte Suprema di Cassazione (Supreme Court of Cassation) referred to the Court for a preliminary ruling under Article 234 EC five questions on the interpretation of AArticle 12 of the EC Treaty (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, 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).

2

Those questions were raised in proceedings between Enirisorse SpA and the Ministero delle Finanze (Ministry of Finance) concerning the payment of port charges demanded by the Ministry in respect of the loading and unloading of goods in the port of Cagliari in Sardinia (Italy).

The relevant provisions of national law

3

Law No 961 of 9 October 1967 (GURI No 272 of 30 October 1967) established the Aziende dei Mezzi Meccanici e dei Magazzini (undertakings responsible for technical equipment and warehouses, together Aziende or Azienda in the singular) in the ports of Ancona, Cagliari, Livorno, La Spezia, Messina and Savona (Italy). That law, as amended by Law No 494 of 10 October 1974 (GURI No 274 of 21 October 1974, p. 7190), provides for the constitution of the Aziende, their sphere of activity and the resources available to them.

4

The Aziende are public economic entities under the supervision of the Ministero della Marina Mercantile (Merchant Navy Ministry). Under Law No 961/67 they are responsible for the management of mechanical loading and unloading equipment, storage areas and other property, real and personal, owned by the State and used for the movement of goods. It is...