Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Timmermans
• ECLI: ECLI:EU:C:2002:188
• Docket Number: C-280/00
• Date: 19 March 2002
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 19 March 2002 (1)


Case C-280/00

Altmark Trans GmbH, Regierungspräsidium Magdeburg
v
Nahverkehrsgesellschaft Altmark GmbH,
interested party : Oberbundesanwalt beim Bundesverwaltungsgericht


(Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany))

((Transport – Regional passenger transport services – State aid – Subsidies to offset the cost of pubic service obligations))

1. The present reference for a preliminary ruling seeks to determine the conditions under which Member States may allocate grants to undertakings which provide local public transport services.The Bundesverwaltungsgericht (Federal Administrative Court) (Germany) raises several questions relating to the interpretation of Article 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC), Article 77 of the EC Treaty (now Article 73 EC) and Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, (2) as amended by Council Regulation (EEC) No 1893/91 of 20 June 1991 (3) (hereinafter Regulation No 1191/69 or the Regulation). I ─ The relevant provisions

A ─

The Community provisions 2. The relevant provisions for the consideration of the dispute are those governing State aid and transport by land. 3. Article 92(1) of the Treaty forbids State aids which distort or threaten to distort competition. It provides:Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the common market. 4. In the transport sector, Article 74 of the EC Treaty (now Article 70 EC) provides that the objectives of the Treaty are to be pursued in the framework of a common transport policy. Article 75 of the EC Treaty (now, after amendment, Article 71 EC) requires the Council to adopt the necessary provisions in order to implement that policy. 5. Article 77 of the Treaty concerns State aids which may be granted in the transport sector. It provides:Aids shall be compatible with this Treaty if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service. 6. Regulation No 1191/69 seeks to eliminate disparities arising from public service obligations which are imposed on transport undertakings by Member States. (4) It requires Member States to terminate public service obligations (5) and lays down common rules for the maintenance of those obligations and for the granting of compensation in respect of any financial burdens which may thereby devolve on undertakings. (6) 7. Article 1(1) of Regulation No 1191/69 provides as follows: This Regulation shall apply to transport undertakings which operate services in transport by rail, road and inland waterway.Member States may exclude from the scope of this Regulation any undertakings whose activities are confined exclusively to the operation of urban, suburban or regional services. 8. According to Article 1(2) urban and suburban services means transport services meeting the needs of an urban centre or conurbation, and transport needs between it and surrounding areas. Regional services are defined as transport services operated to meet the transport needs of a region. 9. Article 1(3) of the Regulation lays down the principle whereby [t]he competent authorities of the Member States shall terminate all obligations inherent in the concept of a public service ... imposed on transport by rail, road and inland waterway. 10. The provisions of Article 1(4) and (5) provide for a derogation from that principle in two situations.On the one hand, the competent authorities may conclude public service contracts with an undertaking to ensure adequate transport services or offer particular fares to certain categories of passenger. In such cases, the public service contracts must comply with the procedures laid down in Section V of Regulation No 1191/69.On the other hand, the competent authorities are authorised to maintain or impose public service obligations for urban, suburban and regional passenger transport services. In such cases, the administrative act must comply with the procedures laid down in Sections II to IV of Regulation No 1191/69. 11. Pursuant to Article 2 of the Regulation, public service obligations means obligations which the transport undertaking in question, if it were considering its own commercial interests, would not assume or would not assume to the same extent or under the same conditions. Those obligations consist of the obligation to operate, the obligation to carry and tariff obligations. (7) 12. Article 6(2) of the Regulation stipulates that decisions to maintain a public service obligation are to provide for compensation to be granted in respect of the financial burdens resulting therefrom. The amount of such compensation is determined in accordance with common compensation procedures laid down in Articles 10 to 13 of Regulation No 1191/69. 13. At the procedural level, Article 17(2) of the Regulation provides that compensation paid pursuant to this Regulation is to be exempt from the preliminary information procedure laid down in Article 93(3) of the EC Treaty (now Article 88(3) EC).

B ─

The national provisions 14. In Germany, the Personenbeförderungsgesetz (Law on Passenger Transport, hereinafter the PBefG) requires that a licence be obtained for the purpose of transporting passengers by regular service vehicles. (8) Such licence is issued to an undertaking for the purpose of guaranteeing a specific transport service. 15. The licence imposes certain obligations on the transport operator, such as that of charging the authorised tariff only, complying with the approved timetable and complying with the operating and transport conditions imposed on it by operation of law. On the other hand, it confers on the beneficiary a status bordering on exclusivity since no authorisation will be granted for a transport operation on the same line while the licence is valid. 16. It is apparent from the file that, until 31 December 1995, the German legislature expressly availed itself of Article 1(1) of Regulation No 1191/69 as regards urban, suburban and regional transport. (9) The Regulations of the Federal Minister for Transport of 31 July 1992 (10) set aside the application of Regulation No 1191/69 for public transport. 17. As from 1 January 1996, the German legislature introduced a distinction between transport services operated commercially and transport services operated as a public service. (11) 18. The PBefG lays down the principle that urban, suburban and regional transport services must be operated commercially. (12) That term denotes services the costs of which are covered by receipts from the carriage of passengers, moneys received pursuant to statutory provisions on compensation in respect of tariffs and the organisation of transport and from other revenue of the undertaking. (13) Licences for commercial transport services are governed by Paragraph 13 of the PBefG. That provision lays down a number of conditions governing the granting of licences, such as the applicant's financial status and reliability, and requires that the application be rejected where the service applied for would affect the interests of the public. If there are several applicants for the same service, the competent authority must make its choice having regard to the interests of the public and, in particular, taking into account cost-effectiveness. 19. On the other hand, where an adequate transport service cannot be provided commercially, it may be operated as a social service. (14) In such cases, the third sentence of Paragraph 8(4) of the PBefG provides that the provisions in force of Regulation (EEC) No 1191/69 must apply.Transport licences operated in accordance with the public service conditions are governed by Paragraph 13a of the PBefG. Under that provision, a licence is to be issued provided it is necessary for the operation of a transport service by virtue of an administrative act or a public service contract within the meaning of Regulation No 1191/69. Further, the option chosen should be that which entails the least cost to the public. For the purpose of establishing the lowest cost, German law provides for a public tendering procedure in accordance with public procurement rules. II ─ The facts and procedure 20. The case in the main proceedings concerns the granting of licences to operate regular bus services in the Landkreis (administrative district) of Stendal in Germany. 21. On 25 September 1990, the Regierungspräsidium Magdeburg (the competent local authority body) (15) issued 18 licences to the undertaking Altmark Trans GmbH ( Altmark) for passenger transport on regional lines. Those licences expired on 19 September 1994. 22. By decision of 27 October 1994, the Regierungspräsidium issued new licences to Altmark. On the same basis, it rejected the application for licences lodged by Nahverkehrsgesellschaft Altmark GmbH (hereinafter NVGA). 23. NVGA lodged an appeal against that decision on the grounds that Altmark was not a financially sound undertaking. It contended that the award of licences was unlawful because Altmark could not survive financially without the public subsides it received. 24. By decision of 29 June...