C-34/01

ENIRJSORSE

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 7 November 2002 1

Table of contents

I — Introduction I -14249 II — Relevant national law I -14249 A — The public undertakings concerned I -14249 B — The contested port charge I -14250 III — The main proceedings and the questions referred I-14251 IV — The first and second questions, and the fifth question in so far as it concerns abuse of a dominant position I -14252 A — Submissions of the parties I -14253 1. The admissibility of the first and second questions I-14253 2. The questions referred I -14253 B — Legal analysis I -14255 1. The admissibility of the first and second questions I-14255 2. The questions referred I -14255 (a) Whether the AMMs are public undertakings I-14256 (b) Whether the AMMs are undertakings having special or exclusive rights I-14256 (c) Whether there is a dominant position I -14257 (i) The relevant market I -14257 (ii) The AMMs' dominant position I -14259 (iii) A substantial part of the common market I -14263 (d) Whether there is abuse I -14264 (i) Abuse I-14264 (ii) Affecting trade between Member States I-14266

1 — Original language: German.

I - 14247

A — Submissions of the parties I -14272

B — Legal analysis I -14274

1. The admissibility of the third question I -14274

2. The third and fifth questions I -14275

(a) The conditions for the existence of aid I -14275

(b) State compensation payments for services of general economic interest: the current state of the debate I -14277

VI — The fourth question: the allocation in terms of free movement of goods, as a charge having an effect equivalent to a customs duty or as discriminatory internal taxation

(Articles 28, 25 and 90 EC) I-14285

A — Submissions of the parties I -14285

B — Analysis I-14286

1. Free movement of goods I-14286

2. A charge having an effect equivalent to a customs duty I -14286

5. Law No 961/67, 2as amended by Law No 494/74, 3established the Aziende dei Mezzi Meccanici e dei Magazzini (Under- takings for technical means and ware- houses, hereinafter 'AMMs') at the six 3. These questions arise in proceedings Italian ports of Ancona, Cagliari, Leghorn, concerning an undertaking which loaded La Spezia, Messina and Savona. and unloaded goods itself, and accordingly did not use the services of the public 2 — Gazzetta Ufficiale della Repubblica Italiana (hereinafter, undertaking entrusted with the dockside 'GURI') No 272 of 30 October 1967. tasks, but which was none the less required 3 — GURI No 274 of 21 October 1974.

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7. Under Article 2 of Law No 961/67, the AMMs are entrusted with 'managing the stevedoring equipment, warehouses, depots and all the other moveable and immovable State property, on behalf of the Merchant Shipping Authorities, for the movement of 9. Law No 82/63 introduced a port charge goods, providing for the acquisition, main- ('tassa portuale') on unloading and loading tenance and development of such assets and goods in specified Italian ports. 6The port undertaking any other activity in connec- charge is assessed and levied by the State tion with all the above'. Article 2 of Law fiscal authorities. No 494/74 authorises the AMMs 'to set up and pursue other commercial services relat- ing to the port and assume the management 4 — GURI No 147 of 5 June 1976. of non-State installations and plant and to 5 — GURI No 52 of 23 February 1963. carry out all the above in other ports falling 6 — In addition to this port charge, Legislative Decree ('decreto within the jurisdiction of the Captain of the legge') No 47/74, as amended and transformed into Law No 117/74 (GURI No 115 of 4 May 1974), introduced a Port at which the AMMs have their regis- tassa erariale di sbarco e imbarco (State charge on unload- ing and loading) of goods carried by sea or air in all Italian tered offices'. ports, but this is not paid over to the AMMs.

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10. Law No 355/76 applies the port charge handling. Enirisorse contested this notice under Law No 82/63 to cargo handling in on the ground that the Decree of 12 May any one of the six ports in which an AMM 1977 setting the port charge under Law is established and allocates two thirds of No 355/76 was unlawful. the charge to the AMMs in order that they can carry out their duties.

12. In the port of Cagliari, 8Enirisorse SpA (hereinafter 'Enirisorse') unloads and loads domestic and imported goods using its own personnel and equipment. 1. Does allocation to a public undertak- ing — operating in the market for dockside unloading and loading of goods — of a significant proportion 13. By a payment order, the Ministry of of a charge (port charge on loading and Finance fixed the port charges due from unloading goods) paid to the State by Enirisorse in 1992 in respect of cargo operators which have not obtained any services from that undertaking, consti- tute a special or exclusive right or a 7 — GURI No 270 of 4 October 1977. measure contrary to the rules of the 8 — It is to be inferred from the submissions of the Italian Treaty, in particular the rules on com- Government that in fact it is Portovesme port. However, petition, within the meaning of this is not material since the Cagliari AMM also operates in Portovesme. Article 90(1) of the Treaty?

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plus the fifth question in so far as it tions as admissible, since the Court is, in concerns abuse of a dominant position, principle, bound to give a ruling on ques- are to be considered together. In substance, tions concerning the interpretation of Com- what must be determined is whether munity law. In that regard, they refer in Article 82 EC in conjunction with particular to TNT Traco 9and Ambulanz Article 86 EC prohibits a national law Glöckner. 10The Commission is moreover which on the one hand entrusts a public of the opinion that it is for the national supplier of port services with tasks relating court to make findings as regards facts to port infrastructure but on the other which do not appear sufficiently clearly requires other economic operators who from the documents but which are necess- unload and load goods using their own ary to enable Community law to be applied assets to pay a charge part of which is in the main proceedings. allocated to that public undertaking.

2. The questions referred A — Submissions of the parties

23. In the Commission's view, it is for the national court to determine, in the light of Merci convenzionali porto di Genova 11 and Centre d'Insémination de la Cres- 26. Enirisorse and the Commission con- pelle, 12 whether the AMMs have a domi- siders that Article 86(2) EC cannot be used nant position, and the national court has to justify the provision. The order of the clearly proceeded on the basis that they do. national court does not refer to any facts showing that the allocation of funds is necessary to assume the provision of ser- vices of general economic interest. The fact that AMMs are not established in all Italian ports proves that their activities are not indispensable.

1. The admissibility of the first and second questions

28. According to settled case-law, in the 31. The order referring the present case context of the cooperation between the contains few details of the services the Court and the national courts provided for AMMs supply and of the ports concerned. by Article 234 EC, it is solely for the However, the parties had the opportunity national court to determine both the need to provide supplementary material at the for a preliminary ruling in order to enable it oral hearing, so as to enable the Court to to deliver judgment and the relevance of the give clear guidance in the light of the facts questions which it submits to the Court. of the case, which ultimately have to be Consequently, where the questions sub- established by the national court. There- mitted by the national court concern the fore, the first and second questions are interpretation of Community law, the admissible. Court is, in principle, bound to give a ruling. 14

37. In my opinion, this question is not (a) Whether the AMMs are public under- relevant to the applicability of Article 86(1) takings EC, since the AMMs are public undertak- ings.

34. The concept of an undertaking has been defined in the Court's case-law as encompassing, 'in the context of compe- tition law... every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed'. 17 38. Article 86(1) EC provides that under- takings for whose actions States must take special responsibility by reason of the influence which they may exert over such 35. The entities the subject of the present actions are subject to all the rules laid down case, the AMMs, are engaged in an econ- in the Treaty, and in particular to the omic activity in that they supply services, in competition provisions. 18 This applies not particular the unloading and loading of only to public undertakings but to any ships, in return for remuneration. undertaking whose special position results from the grant of special or exclusive r i g h t s . T h u s , the applicability of Article 86(1) EC depends on the ability of the State to influence the undertaking concerned. 19 Accordingly, public under- 36. There is likewise no doubt that the takings are always within the scope of AMMs are public undertakings. This is application of Article 86(1) EC, whether or shown by their legal form, namely enti not they have also been granted special or pubblici economici, as well as by the exclusive rights. ministerial control to which they are appar- ently subject. 18 — See, for example, Joined Cases 188/80 to 190/80 France, Italy and United Kingdom v Commission [1982] ECR 2545, paragraph 12. 17 —Case C-41/90 Höfner and Elser [1991] ECR I-1979, 19 — See Schwarze and von Burchard, EU-Kommentar, paragraph 21. Article 86 of the EC Treaty, paragraph 8.

40. Whereas Article 82 EC applies 'only to anti-competitive conduct engaged in by undertakings on their own initiative, not 42. The Court has repeatedly stated that to measures adopted by States', 20 the when considering the possibly dominant Court has consistently held that the aim position of an undertaking, 'the definition of Article 86(1) EC is 'to specify in of the market is of fundamental signifi- particular the conditions for the application cance... as is the delimitation of the sub- of the competition rules laid down by stantial part of the common market in Articles 85 and 86 [now Articles 81 and which the undertaking may be able to 82 EC] to public undertakings, to under- engage in abuses which hinder effective takings granted special or exclusive rights competition'. 22 by the Member States and to undertakings entrusted with the operation of services in the general economic interest'. 21 Accord- ingly, Article 86(1) EC enables the compe- tition rules to apply to anti-competitive practices which could not otherwise be attributed to the undertaking concerned. 43. The Court has consistently held that the relevant market, 'must be judged in the context of [a] market comprising the total- ity of the products [or services] which, with respect to their characteristics, are particu- larly suitable for satisfying constant needs and are only to a limited extent inter- 4 1 . Given the c r o s s - r e f e r e n c e in changeable with other products [or ser- Article 86(1) EC, what must next be vices]'. 23 examined is whether the requirements of

46. In this connection it is to be noted that although the activity of each AMM is geographically restricted, all the AMMs are subject to the same legislative provi- sions regardless of where they operate. This could lead to homogeneity of competitive conditions, which would allow all the ports having an AMM to be regarded together as the geographically relevant market. On the 45. It is also for the national court to define other hand, the fact that the Cagliari and the relevant m a r k e t ' s geographical Portovesme port facilities are on an island extent. 26 This is disputed in the present might suggest that there is no homogeneity. case. The national court appears to con- sider that it is the particular port at which an AMM is established. The Italian Gov- ernment submits that it is the port of Portovesme as a part of Cagliari port, because the AMMs operated in both ports. By contrast, Enirisorse submits, and indeed emphasised at the oral hearing, that it is all ports in which an AMM is established and, obviously having regard to the require- 47. It is for the national court to make a ments of Community law, points out that definitive ruling. However, in doing so it will have to bear in mind 'the need to take into account the market on which con- 24 — See the amended proposal for a Directive of the European ditions of competition are sufficiently Parliament and of the Council on Market Access to Port homogeneous, that is to say an area in Services (COM (2002) 0101 final) (OJ 2002 C 181 E, p. 160), Article 4 of which defines port services as, 'services which the objective conditions of compe- of commercial value that are normally provided against tition applying to the services in question payment in a port and which are listed in the Annex'. It appears from the Annex that 'port services' include in and in particular consumer demand are particular cargo handling, 'including (a) loading and unloading; (b) stevedoring, stowage, transhipment and similar for all economic agents'. 27 other intra-terminal transport; (c) storage, depot and warehousing, depending on cargo categories; (a) cargo consolidation'. 25 — See for example Sydhavnens Sten & Grus (cited above, 27 — Ambulanz Glöckner (cited above, note 10), paragraph 34, note 22), paragraph 60. under reference to Case 27/76 United Brands v Commis- 26 — Paragraph 60. sion [1978] ECR 207, paragraph 44.

50. However, the application of Article 82 30 — See for example Case C-38/97 Autotrasporti Librandi EC is, 'not precluded by the fact that the [1998] ECR I-5955, paragraph 27, under reference to Case 85/76 Hoffmann-La Roche v Commission [1979] ECR absence or restriction of competition is 461, paragraph 38. facilitated by laws or regulations'. 29 31—Case C-18/88 CB-Inno-BM [1991] ECR I-5941, para- graph 25, under reference to Case C-202/88 France v Instead, it appears from the case-law on Commission ('Telecommunications terminals equipment') [1991] ECR I-1223, paragraph 51. Article 86(1) EC in conjunction with 32 —Joined Cases C-395/96 P and 396/96 P Compagnie Mari- Article 82 EC that a position of economic time Belge Transports and Others v Commission [2000] ECR I-1365, paragraph 37, under reference to Michelin (cited above, note 23), paragraph 57. 33 — Case C-203/96 Chemische Dusseldorp and Others [1998] ECR I-4075, paragraph 60. That case concerned whether a 28 — See in particular Michelin (cited above, note 23), para- provision granting a single undertaking the exclusive right graph 30, and Bodson (cited above, note 21), paragraph to incinerate dangerous waste throughout the entire 26. territory of the Member State was compatible with 29 — Bodson (cited above, note 21), paragraph 26. Article 86(1) EC in conjunction with Article 82 EC.

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52. Therefore, where the State grants an required to pay — as must all other per- undertaking exclusive rights, whether this sons providing the same services — postal creates a dominant position depends solely dues'. 36 A little further on, the Court held on whether those rights exist in relation to that 'it is not in dispute that Post Italiane... the whole or a substantial part of the has a dominant position within the mean- common market. ing of Article 86 of the EC Treaty [now Article 82 EC]', 3 7 though in a different context it spoke of, 'creating a dominant position by the grant of special or exclusive rights'. 38

55. As regards the question which the above case-law says is decisive, namely, whether the AMMs have been granted exclusive rights, all the parties assumed that the contested allocation of funds was 54. There was a similar result in TNT to be regarded as the grant of exclusive Traco. 35 That case concerned postal dues rights. which were to be paid directly to the Italian Post Office by inter alia providers of express courier services, even where the Post Office had not supplied any services to them. The Court held that 'Poste Italiane must also be considered as an undertaking which has been granted by the Member 56. However, I think that the allocation of State concerned special or exclusive rights funds in the manner adopted in the present within the meaning of Article 90(1) of the case cannot in itself be regarded as the EC Treaty [now Article 86(1) EC], having grant of an exclusive right and accordingly been given the exclusive right to collect, cannot by itself satisfy that condition for carry and deliver mail... without being

36 — Cited above, note 9, paragraph 40. 34 — Cited above, note 22, paragraph 35. 37 — Cited above, note 9, paragraph 43. 35 — Cited above, note 9. 38 — Cited above, note 9, paragraph 44.

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58. At first sight, in the present circum- stances the allocation of State funds to the AMMs 40 appears to constitute such a selective, beneficial measure. This is because where cargo can be handled by the undertakings themselves in the ports in which the AMMs are established, the port charge affects competition between the AMMs and those undertakings who handle their own cargo by burdening the latter with the additional costs arising from the port charge, whereas the allocation of funds strengthens the AMMs' economic 60. The allocation of part of the port position, and thereby their position in the charge to the AMMs is to be distinguished cargo handling services market. from GT-Link and TNT Traco at least in so far as the AMMs do not themselves decide on levying the charge and accord- 39 — Cited above, note 10, paragraphs 83 to 89. ingly cannot influence its amount. The 40 — As regards compensation for any public service burdens, AMMs are merely the passive beneficiaries see my considerations below relating to State aid, para- graphs 142 rf. of a State financing measure.

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4 3 — In this connection, one must remember the Court's case- 62. Last but not least in this connection, law, according to which inconsistencies between Article 87 there must be discussed the problem of ff. EC and other provisions of the Treaty are to be minimised. In Case C-225/91 Matra v Commission [1993] concurrence with State aid law. If one ECR I-3203, paragraph 42, proceedings under Article 88(2) EC, the Court spoke of an, Obligation on regards the selective allocation of State the part of the Commission to ensure that Articles [87 EC] funds to a particular undertaking as the and [88 EC] are applied consistently with other provisions of the Treaty'. grant of an exclusive right to that under- 44 — See in particular Case C-82/01 P Aéroports de Paris [2000] taking, with the consequence that such a ECR-9297, paragraphs 106 and 107: 'ADP, as the owner of the airport facilities, is alone in being able to authorise grant itself gives the undertaking a domi- access. ...ADP ... enjoys a legal monopoly ... to manage the airports concerned and is alone able to grant authorisation nant position, the law on State aid is to carry out groundhandling activities there and to deprived of all effect. 42 However, it must determine the terms on which those activities are carried out. be recalled that the two sets of rules are In those circumstances, the Court of First Instance could applied differently — I need refer only to properly conclude ... that ADP wields economic power which enables it to prevent effective competition from being maintained in the relevant market by giving it the opportunity to act independently'. In te present case the State appears to remain in ownership of the port installations. That said, it appears possible to 41 — It is to be observed that in TNT Traco (cited above, note make a comparison in so far as, pursuant to Law N o 9), it was not in dispute that Poste Italiane dominated the 961/67, the AMMs have a monopoly over the operation of relevant market: see paragraph 4 3 . the requisite infrastructure. Should that be confirmed, the 42 — In this connection, it is to be borne in mind that State aids A M M s would then be in a position to exercise a distort competition by giving a particular undertaking an determining influence on access to the market for the 'unearned cost advantage' (Rawlinson, in Lenz, EG-Ver- provision of port services, with the result that a dominant trag Kommentar, Article 87 EC, paragraph 10. position could be presumed.

(iii) A substantial part of the common 68. A dominant position in a substantial market part of the common market may also be constituted by a contiguous series of mon- opolies territorially limited but, 'together 65. If the AMMs, or each of them individ- covering the entire territory of a Member ually, were none the less held to have a State'. 47 dominant position on the relevant market (which requires to be defined more pre- cisely), there would then have to be deter- mined whether that market is to be regarded as a substantial part of the 69. It is for the national court to determine, common market. on the basis of the actual economic data and the geographical situation, whether the Cagliari ports managed by the AMM or, as the case may be, all six ports in which an AMM is established are to be regarded as a 66. The Court has held that 'regard must substantial part of the common market. If be had in that context to the volume of the national court were to decide that the traffic in the port in question and its ports should be considered together, the importance in relation to maritime import economic importance of the individual and export operations as a whole in the ports would recede into the background Member State concerned'. 45 in so far as the AMM ports could be regarded as a substantial part of the geographical territory of Italy within the meaning of the case-law cited above.

67. The Court applied these criteria in Merci convenzionali porto di Genova, 46 which concerned the market for cargo handling services in the port of Genoa, 70. It is only if the national court decides and there held that the market, as so that the AMMs have a dominant position on the relevant market and that that 45 — GT-Link (cited above, note 22), paragraph 37, under reference to Merci convenzionali porto di Genova (cited above, note 11), paragraph 15. 47 — Centre d'insémination de la Crespelle (cited above, note 46 — Cited above, note 11. 12), paragraph 17.

72. The starting point for the analysis is the 75. There is abuse by charging excessive now established case-law of the Court, amounts where 'the dominant undertaking according to which, 'although merely creat- has made use of the opportunities arising ing a dominant position by the grant of out of its dominant position in such a way special or exclusive rights is not, in itself, incompatible with Article 86 of the EC 48 — TNT Traco (cited above, note 9), paragraph 44, under Treaty [now Article 82 EC], a Member reference to GT-Link (cited above, note 22), paragraph 33 State breaches the prohibitions laid down and Dusseldorp and Others (cited above, note 33), paragraph 61. See also Sydhavnens Sten & Grus (cited by Article 90(1) of the EC Treaty [now above, note 22), paragraph 66. Article 86(1) EC] in conjunction with 49 — See also Sydhavnens Sten Sc Grus (cited above, note 22), paragraph 67: 'The Courl has thus held that a Member Article 86 [now Article 82 EC] if it adopts State may, without infringing Article 86 of the Treaty, grant exclusive rights to certain undertakings provided any law, regulation or administrative provi- they do not abuse their dominant position or are not led sion that creates a situation in which an necessarily to commit an abuse', under reference to Case C-266/96 Corsica Ferries France [1998] ECR I-3949, undertaking on which it has conferred paragraph 41.

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as to reap trading benefits which it would precisely those cases in which the State not have reaped if there had been normal causes or forces the undertaking it and sufficiently effective competition'. 50 influences to engage in conduct which that undertaking would not have engaged in of its own accord.

81. For that reason, I think that abuse should be considered by reference to the effects of the contested provision. Accord- 79. This restrictive interpretation of ing to the Court's case-law, a State measure Article 86(1) EC is not without difficulty, which extends the dominant position of an in that this provision is intended to cover undertaking to which the State has granted special or exclusive rights constitutes an infringement of Article 86 EC in conjunc- 50 — United Brands (cited above, note 27), paragraphs 248 ff. tion with Article 82 EC. 54 51 — TNT Traco (cited above, note 9), paragraph 46, under reference to Centre d'insémination de la Crespelle (cited above, note 12), paragraph 25 and GT-Link (cited above, note 22), paragraph 39. 54 — See Ambulanz Glöckner (cited above, note 10), paragraph 52 — TNT Traco (cited above, note 9), paragraph 47. 40, under reference to GB-Inno-BM (cited above, note 31), 53 — Opinion in Case C-340/99 (cited above, note 9), paragraph paragraph 21, and Dusseldorp and Others (cited above, bo f. note 33), paragraph 61.

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82. In TNT Traco, Advocate General Alber rather than too high, and were thus dis- considered that extending the Italian Post proportionate to market prices. Where such Office's dominant position on the relevant conduct is deliberately directed against market by imposing a burden on its com- competitors, it constitutes abuse. 56 petitors in a different market, and thereby distorting competition to the benefit of the Italian Post Office, constituted abuse. 55

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87. In the case of services, that effect may (e) Justification under Article 86(2) EC consist in, 'the activities in question being conducted in such a way that their effect is to partition the common market and thereby restrict freedom to provide ser- vices... Similarly, trade between Member States may be affected by a measure which 89. If, in the light of the above consider- prevents an undertaking from establishing ations, the national court should determine itself in another Member State with a view that the contested national provision to providing services there on the market in infringes Article 86(1) EC in conjunction question'. 59 with Article 82 EC, the last point requiring to be determined is whether the services are of general economic interest within the meaning of Article 86(2) EC, as the Italian Government submits they are.

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allocation of funds is necessary to enable 94. The services the AMMs supply could them to perform the particular task be of general economic interest in two assigned to them. ways. The Italian Government submits in the first place that they promote the efficient functioning of the port facilities and the safety of ships' berths, and in the second place that the AMMs are required to ensure the availability of cargo handling services at reasonable prices in smaller ports. In other words, the AMMs are required to ensure the existence of high quality port infrastructure and access to it, (i) Services of general economic interest by means of a universal service in what are, in purely economic terms, clearly less attractive ports.

92. The application of Article 86(2) EC is conditional on 62 the Member State defin- ing the content of the obligations and duties imposed in entrusting the particular task, and on these obligations being specific to the particular undertaking and its busi- ness, being linked to the subject-matter of the service of general economic interest in question and being designed to make a direct contribution to satisfying that inter- est.

95. The Court has already rejected the 93. According to the documents in the proposition 'that the operation of any present case, the AMMs supply services commercial port constitutes the operation direct to the State, in that they manage and of a service of general economic interest maintain part of the port facilities. 63 How- or... that all the services provided in such a ever, they also supply services to other port amount to such a task'. 64 However, economic operators, in that they compete the Court has held that certain port services in the market for cargo handling services constitute services of general economic and offer their own services on that market. interest, for example a general mooring

96. What is decisive in determining whether a service is of general economic 98. As regards port infrastructure, it is to interest is whether the service concerned is be observed that maintaining port facilities 'of general economic interest exhibiting in itself promotes those facilities' safety, special characteristics compared with that and with it the safety of maritime transport of other economic activities'. 6 7 In Corsica within the port. What is unclear in the main Ferries II, 68 the special characteristic was proceedings is the extent to which the that for safety reasons the services were services which the AMMs supply to the required to be available at all times to all State, as described above, exhibit special persons using the port. In GT-Link, the characteristics which, because of the costs Court did not preclude the possibility that, incurred, could justify granting compen- 'the mere provision of the port infrastruc- sation assessed by reference to usage. 72 ture' could be classified as a service of This obscurity doubtless results from the general economic interest. 69 Finally, in fact that those services are not the subject- SIOT, 70 the Court recognised 'the more matter of the main proceedings. general benefits derived from the use of harbour waters or installations for the navigability and maintenance of which the public authorities are responsible'.

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interest exhibiting special characteristics cation of funds 74 — is necessary to enable compared with that of other economic the undertaking to perform the particular activities'. On the other hand, Article 6 of task, and that, without the contested meas- the Commission's amended proposal for a ure, the undertaking in question would be Directive on Market Access to Port Services unable to carry out the task assigned to (COM (2002) 0101 final) provides that the it. 75 grant of authorisations to persons offering port services may be made subject to, 'public service requirements relating to safety, regularity, continuity, quality and price and the conditions under which the service may be provided'.

102. Therefore, the question is whether the allocation of funds is necessary to enable the AMMs to perform the tasks entrusted to them. 76 It could be held to be necessary only if the Italian Government could show 100. Thus, the fact referred to by the that the funds allocated compensated for Italian Government, namely that each of the burdens resulting from the particular the ports in which the AMMs are estab- tasks. Yet the Italian Government's own lished has only a small trading income, submissions suggest that this is at least might be regarded as a 'special characteris- doubtful. tic' within the meaning of the above case- law.

103. First, the Italian Government is required to identify clearly the burdens (ii) Necessity resulting from the assumption of the par- ticular tasks. 77

104. In addition, the allocation of part of 106. Moreover, Law No 84/94 apparently the proceeds of the port charge is clearly transferred the management of the port not the AMMs' only source of finance. The facilities concerned, together with the allo- national legal framework provides that the cation of part of the proceeds of the port costs of acquiring new assets are to be charge, to the State port authorities, but borne by the State, in so far as the AMMs' not the unloading and loading of goods, budget is not sufficient. In that connection, which continue to be done by the AMMs. it is clear that State intervention to assure a From that it is clear that the contested balanced budget is entirely variable. More- allocation of funds may well not have been over, the AMMs have available to them the necessary for ensuring the availability of income from the assets they manage as well cargo handling services at reasonable as funds from loans and from other finan- prices. cial transactions.

107. Thus, the circumstances of the case suggest that there is no justification under Article 86(2) EC; but it is none the less for the national court to carry out a definitive analysis by reference to the criteria given above. 105. Therefore, it appears that it is almost impossible to prove that the burdens on the AMMs resulting from any particular tasks match the funds granted by the State to compensate for those burdens. It appears that the goal of Commission Directive 2000/52/EC, 78 namely transparency of financial relations between Member States and public undertakings, has not been achieved. 79 The impossibility of matching (f) The fifth question, in so far as it the burdens on the AMMs to the State concerns abuse of a dominant position compensation will also be relevant to the part of the judgment in the main proceed- ings relating to State aid. 80

113. By its third question, the national 110. However, the charge in the present court asks in substance whether the allo- case is levied not by a public undertaking cation of a significant part of the contested but by the State, which allocates a substan- port charge to the AMMs constitutes State tial part of the proceeds to the AMMs. The aid. The national court also asks whether, contested charge provisions strengthen the if this question is answered in the affirm- AMMs' possibly dominant position only in ative, the failure to notify the aid to the so far as part of the proceeds of the charge Commission requires the national court to is allocated to the AMMs. disapply the contested provision. Finally, it asks whether the levying of the charge or only the allocation of part of the charge is incompatible with Community law.

111. Therefore, if the national court is able to establish abuse of a dominant position, A — Submissions of the parties only the part of the proceeds of the charge which is allocated to the AMMs would be incompatible with Community law. 114. Enirisorse and the Commission sub- 81 — GT-Link (cited above, note 22), paragraph 57. mits that the Cagliari AMM is an under- 82 — GT-Link (cited above, note 22), paragraph 61. taking and that the allocation of part of the

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proceeds of the port charge is selective. The 116. The Commission also submits that it allocation affects trade between Member is for the national court to establish States and distorts or threatens to distort whether the measure affects trade between competition in that the AMM competed Member States and distorts or threatens to with undertakings from other Member distort competition. States which want to handle cargo using their own resources.

84 — As regards this submission, see above, paragraph 28. 83 — Cited above, note 14. 85 — Cited above, note 14.

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120. Enirisorse and the Commission sub- 122. Therefore, the question as to whether mit that the contested provision cannot be the allocation of funds is to be regarded as justified under Article 86(2) EC. The Com- State aid might be immaterial to the ques- mission cannot find any facts in the judg- tion posed in the main proceedings as to the ment of the national court showing that the lawfulness of levying the charge. The Court services are necessary and of general econ- has held that, '[p]ersons liable to pay an omic interest. For that reason, the judgment obligatory contribution cannot rely on the in Ferring 86 cannot be applied to the argument that the exemption enjoyed by present case. Enirisorse submits in addition other persons constitutes State aid in order that the fact that the AMMs are not to avoid payment of that contribution'. 87 established in all Italian ports proves that The Court therefore held that the question their activities are not necessary. Both it as to whether a tax exemption constituted and the Commission also think that the State aid was clearly not relevant in pro- provision is unlawful in any case, because it ceedings concerning an obligation to pay a has not been notified to the Commission. charge. This case-law might be understood as meaning that classifying a measure as State aid necessarily leads to charges paid having to be repaid, but not to an exemp- tion from the charge.

128. It follows that the third question is 126. It is also to be observed that the admissible. French Government submitted a similar argument in Ferring 89 and GEMO. 90 In Ferring, the argument was rejected by Advocate General Tizzano; 91 the Court did not refer to it in its judgment. In GEMO, Advocate General Jacobs adopted the reasoning of Advocate General Tiz- zano. 92 2. The third and fifth questions

129. By the first part of the third question, the Corte Suprema di Cassazione asks in 127. In the present case, moreover, the substance whether the allocation of part of national court considered it appropriate to the port charge to the AMMs constitutes refer the case to the Court precisely because State aid w i t h i n the meaning of of the question as to whether, in determin- Article 87(1) EC. ing the existence of State aid, the levying of the charge can be separated from the allocation of part of its proceeds, that is to say its application. Given that context, the third question appears to be a pre- liminary question to the fifth question. It therefore appears to be necessary to exam- ine the substance of the third question, even if only to clarify whether it is for Commu- (a) The conditions for the existence of aid nity law to answer the question as to

88 — See above, paragraphs 28 ff., and the case-law cited in note 14. 1 3 0 . A measure is p r o h i b i t e d by 89 — Cited above, note 86. 90 — Case C-126/01 [2003] ECR I-13769. See the Opinion of Article 87(1) EC if: Advocate General Jacobs. 91 — Cited above, note 86, paragraphs 20 to 24 of the Opinion. 92 — Cited above, note 90, in particular paragraphs 35 to 48 of 93 — See below, paragraphs 177 ff. the Opinion.

94 — See above, paragraphs 35 f. 96 — Cited above, note 14. 95 — As regards the requirement of selectivity, see in particular 97 — Ferring (cited above, note 86), paragraph 21, under Case C-143/99 Adria-Wien Pipeline and Another [2001] reference to Case 730/79 Philip Morris v Commission ECR I-8365, paragraphs 34 f. [1980] ECR 2671, paragraph 11.

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136. It is also to be assumed that the such services are a focal point of political AMMs compete with undertakings from interest. 101 other Member States, and in particular with undertakings who handle their own cargo, in the market for cargo handling services, so that it likewise appears likely that a distortion of competition is threatened. 139. Given my reflections 102 on the possi- bility of justifying the contested measure under Article 86(2) EC, I broach this issue only for the sake of completeness, in case the Court were to consider it appropriate to 137. Ultimately, the main question is assess the national measure under State aid whether the contested measure favours the law first. AMMs. The Italian Government denies that it does, on the basis that it is com- pensation for services of general economic interest.

(i) The Ferring judgment 103 in the light of previous case-law and the practice of the Commission (b) State compensation payments for ser- vices of general economic interest: the current state of the debate

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141. The starting point for the Court's 144. This approach to compensation pay- reasoning was the finding that 'the fact ments at the stage of determining whether that undertakings are treated differently there is State aid is noteworthy since the does not automatically imply the existence Court thereby departed from its own case- of an advantage for the purposes of law 1 0 7 and the Commission's practice, 108 Article 92(1) of the Treaty [now without considering the consequences of Article 87(1) EC]'. 104 From that, it fol- the change. lowed that there was no such advantage 'where the difference in treatment is justi- fied by reasons relating to the logic of the system'. 105

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146. The Court of First Instance rejected compensation approach adopted in Ferring this approach in one of its judgments, 111 should be abandoned. specifically on the basis that the concept of aid had to be interpreted objectively, that is to say regardless of the purpose for which the funds were allocated, with the con- sequence that the question as to whether the advantage conferred compensated for a burden was to be dealt with as part of the question of justification. The judgment was 149. In substance, Advocate General Léger confirmed by order of the Court of Justice, considered three points: albeit without any discussion of the ques- tion as to whether, conceptually, there was any actual aid. 112

— the objective nature of the concept of 147. In Banco Exterior de España, 113 this aid; Court reverted to the view that a tax exemption granted to publicly-owned banks in Spain was to be classified as aid, although Article 86(2) EC was inapplicable as long as the Commission had not found the aid to be incompatible with the com- mon market. — the compensation approach was liable to deprive Article 86(2) EC of its effect, because the provision would no longer apply to cases where the compensation granted did not exceed the costs of the public service obligations (in other (ii) Criticism of the Ferring judgment cases, this provision could not apply anyway, since any over-compensation which constituted aid in such cases could not be necessary within the 148. In his opinion in Altmark Trans,114 meaning of the provision); Advocate General Léger proposed that the

154. T h e r e f o r e , the c o m p e n s a t i o n 152. In summary, Advocate General Jacobs approach taken in Ferring may be adopted favoured a distinction based (i) on the only where the service and the consider- nature of the link between the financing ation are clearly identifiable. However, as granted and the general interest duties regards services of general economic inter- imposed and (ii) on how clearly those est, it is to be observed that it is difficult to duties had been defined. 117 Accordingly, find a standard for assessing the propor- he favoured applying the compensation tionality of the compensation, since ser- approach in cases, 'where the financing vices of general economic interest are measures are clearly intended as a quid pro supplied usually 'where market forces alone quo for clearly defined general interest do not result in a satisfactory provision of obligations'. 118 In his opinion, other cases services'. 120 should continue to be subject to the Com- mission's State aid law surveillance.

155. However, where the general interest duties have not been clearly defined, it is not possible to adopt the compensation (iii) Opinion and conclusions for the pres- approach. This is because in such cases it is ent case ex hypothesi impossible to calculate the burdens (i.e. the costs) resulting from them with sufficient precision. In such cases, it is impossible to find the direct and manifest 153. If one proceeds on the basis that the link to the obligations undertaken which determination of whether a measure con- Advocate General Jacobs required.

156. As regards the present case, I have the State need pay only a reasonable already explained that in my opinion the consideration for services supplied to it. AMMs' general interest duties (if they have any) have not been defined sufficiently clearly. 121 This is enough to preclude a finding that there is no de facto economic advantage at the stage of determining whether there is State aid. In addition, it is clear that any burdens which may result from performing services of general econ- 158. As regards the argument that the omic interest are financed from a number compensation approach is not compatible of sources, without any clear allocation. 122 with the objective nature of the concept of aid, I think that where one examines whether the State allocation compensates or over-compensates for a disadvantage in considering the question whether an advan- tage has been granted, one need at that stage have regard only to the effects of the allocation of funds. The purposes for which the funds are allocated need be investigated only in so far as is necessary to establish 157. It cannot be disputed that criteria such whether the services are of general econ- as a direct and manifest link between the omic interest. 124 burdens imposed and the compensation for them need to be refined. However, issues relating to services of general economic interest are of an 'evolutionary character' (as the Commission recently empha- sised), 123 and such criteria do provide a flexible standard of assessment. In this connection it is to be observed that requi- 159. I do not think that the argument that ring a direct or manifest link between the Article 86(2) EC might be deprived of its burdens imposed and the compensation for effect leads to a different conclusion. Even them does not in principle preclude the if this were the case with respect to possibility that services of general econ- Article 87(1) EC, Article 86(2) EC would omic interest may be entrusted by means be unaffected as regards the application of other than a procurement procedure. This the other competition provisions and in the is to be welcomed, since Community law area of fundamental freedoms. One might does not recognise a general obligation to regret that Article 86(2) EC would not conduct procurement procedures and it is apply in the same way in the context of not impossible that other ways of entrust- State aid law as it would in the context of ing services, for example existing de facto the rest of competition law. However, this avenues of negotiation, could ensure that point cannot be decisive. Such a difference already exists in other respects: for

160. Finally, the Commission's role has to 162. By the second part of the third ques- be considered. The Commission's review tion, the national court asks in substance powers (which are in any case restricted as whether national courts are authorised or regards the lawfulness of the contract to required to intervene under Article 88(3) provide services) give rise to the con- EC where a State aid has not been notified sequences of Article 88(3) EC, in particular to the Commission. the prohibition on putting the proposed measures into effect. However, precisely this prohibition appears difficult to justify in the case of services of general economic interest. It was because of exactly this point that doubts arose as to the State aid approach. 126 If a compensation payment in fact over-compensates, the Commission is free to introduce infringement proceed- ings against the Member State concerned. 163. According to the Court's case-law, the national courts are involved in the system for the review of State aid through 'the direct effect attributed to the prohibition on implementation of planned aid laid down 161. In result, it is to be considered that the in the last sentence of Article 93(3) of the allocation of a significant part of the EC Treaty [now the last sentence of proceeds of a port charge to a public Article 88(3) EC]... National courts must undertaking constitutes State aid within offer to individuals the certain prospect the meaning of Article 87 EC if the that all appropriate conclusions will be allocation of funds has no direct and drawn from an infringement of that provi- manifest link to the burdens resulting from sion, in accordance with their national law, the supply of clearly identifiable services of as regards the validity of measures giving general economic interest. effect to the aid, the recovery of financial support granted in disregard of that provi- sion and possible interim measures' 127 (emphasis added). 125 — See in particular Commission v France (cited above, note 62), paragraph 59: it is necessary where the application of the Treaty provisions obstructs the performance, in law or in fact, of the special obligations. It is not necessary that the survival of the undertaking itself be threatened. 127 — Adria-Wien Pipeline (cited above, note 95), paragraphs 126 — See the Opinion of Advocate General Tizzano in Ferring 26 f., under reference to Case C-354/90 FNCE and (cited above, note 86), paragraphs 77 ff. Another [1991] ECR I-5505, paragraph 12.

166. By its fifth question (in so far it concerns State aids), the national court asks in substance whether the whole charge or only the part allocated to the AMMs is to be regarded as State aid. 169. In FNCE, 129 the Court discussed the introduction of a parafiscal charge without distinguishing between levy and appli- cation. By contrast, in Compagnie com- merciale de l'Ouest, the Court did distin- guish between the charge itself and its 167. The Court designates charges dedi- application, stating that 'a parafiscal cated to a particular purpose as 'parafiscal charges'. In the case of such charges, which 128 — Thus, in Case 47/69 france v Commission [1970] ECR are characterised by the fact that when they 487, paragraphs 17 f., concerning charges intended to are levied they are already destined to finance a particular grant of aid, the Court considered that, 'both... the method of financing and... the close finance a particular allocation of funds, connexion which makes the amount of aid dependent upon the revenue from the charge' were to be taken into State aid law distinguishes between two account in assessing the effects of the aid. transactions, namely the increase of State 129 — Cited above, note 127.

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None the less, he also considered a more restrictive inter- pretation under which the only con- sequence of the fact that aid was unlawful under Community law was that the aid could not be granted, and that the lawful- ness of levying the charge was unaf- 170. This distinction has been confirmed fected. 133 and (subject to terminological differences) applied in a series of judgments concerning parafiscal charges, the Court having classi- fied sometimes the application of the pro- ceeds of the charge 13 1and sometimes the levying of the charge 132 as State aid.

For does in certain respects come within the scope either of Article 12 or of Article 95 of the Treaty, the use to which that reason, in so far as the fifth question the revenue from it is put, or the machinery for its concerns State aid, the answer to it is that reimbursement, may nevertheless constitute a State aid, possibly incompatible with the common market' and in only the part allocated to the AMMs is to the operative part of the judgment, 'The reimbursement of a parafiscal charge like the one at issue in this case, or be classified as State aid. the use to which the revenue from it is put, may constitute State aid incompatible with the common market'; Case C-266/91 CELBI [1993J ECR I-4337, operative part of

1 7 3 . Whether the infringement of issue in the main proceedings may, depending on how the Article 88(3) EC affects the lawfulness of revenue from it is used, constitute State aid incompatible with the common market'. 132 — Case C-72/92 Scharbatke [1993] ECR I-5509, operative part of the judgment: 'The collection of a parafiscal 133 — Joined Opinions in Case C-17/91 (cited above, note 131), charge of that kind may, depending on how the revenue Joined Cases C-144/91 and C-145/91 Demoor and from it is used, constitute State aid incompatible with the Others [1992] ECR I-6613 and Case C-114/91 Claeys common market'. [1992] ECR I-6559.

174. In my opinion, it follows that the question as to which national measure is affected by that invalidity is a matter exclusively for national law, subject as usual to the principles of equivalence and 176. The Commission submits that since effectiveness. 136 the present case concerns a taxation meas- ure, Article 28 EC does not apply. Fur- thermore, the Commission does not regard 134 — Cited above, note 127. the measure as a charge having an effect 135 — Paragraph 12. equivalent to a customs duty within the 136 — See also the Opinion of Advocate General Jacobs in GEMO (cited above, note 90), paragraph 44: 'Under the meaning of Article 25 EC. The measure is principle of procedural autonomy it is then in my view for the national legal order to determine precisely which to be assessed under Article 90 EC on the national measures are affected by that invalidity and basis that it is an internal tax. It applies what consequences that invalidity has for example for the refund of charges collected on tne basis of the measures without distinction to domestic and concerned. The only limitations on that autonomy are the imported goods, and therefore cannot be principle of equivalence and the principle of effective- ness'. held to be a discriminatory internal tax.

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177. The Italian Government does not 1. Free movement of goods regard the contested provision as infringing the free movement of goods, or as a charge having an effect equivalent to a customs 180. The Court has consistently held 'that duty, or yet as an internal tax infringing the scope of Article 30 [now, after amend- Article 90 EC. ment, Article 28 EC] does not extend to the obstacles to trade covered by other specific provisions of the Treaty, and that obstacles of a fiscal nature or having an effect equivalent to customs duties which are covered by Articles 9 to 16 and 95 of the Treaty [now, after amendment, Articles 23 EC to 25 EC and 90 EC] do not fall within the prohibition laid down in Article 30 [now, after amendment, Article 28 EC]'. 137 B — Analysis

182. It must first be recalled that '[t]he Court has consistently held... that provi- sions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, so that under the system of the Treaty the same imposition cannot belong 179. The fourth question refers to 'the to both categories at the same time'. 138 The appropriation..., ab origine, of a significant Court has also held that '[t]he essential proportion of the proceeds from a... charge' and not to the actual levying of the charge. However, in order to give a useful answer 137 — Lornoy (cited above, note 131), paragtaph 14, under to the question, it is to be understood as reference to Case 74/76 lanelli and Volpi [1977] ECR 557 and Compagnie commerciale de l'Ouest (cited asking whether the charging provision is above, note 130). compatible with the abovementioned 138 — Case C-90/94 Haahr Petroleum [1997] ECR I-4085, paragraph 19, under reference to CELBI (cited above, Treaty provisions. note 131), paragraph 9.

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feature of a charge having an effect equiv- Member States internal taxation in excess alent to a customs duty which distinguishes of that imposed on similar domestic prod- it from an internal tax resides in the fact ucts or of such a nature as to afford indirect that the former is borne solely by an protection to other domestic products. 'It is imported product as such whilst the latter therefore beyond question that application is borne both by imported and domestic of a higher charge to imported products products, applying systematically to cat- than to domestic products or application to egories of products in accordance with imported products alone of a surcharge in objective criteria irrespective of the origin addition to the duty payable on domestic of the products'. 139 and imported products is contrary to' the prohibition of discrimination laid down in Article 90 EC. 140

V I I— Conclusions

187. Therefore, I suggest to the Court that the questions referred by the Corte Suprema di Cassazione should be answered as follows:

The allocation to a public undertaking — operating in the market for cargo handling service in the ports concerned — of a significant proportion of a charge levied on unloading or loading goods in certain ports, and paid to the State by operators

(1) can constitute a measure infringing Article 82 EC in conjunction with Article 86(1) EC where the recipient undertaking has a dominant position in the relevant market as defined by the national court, and that market is a substantial part of the common market. It is for the national court to determine whether these conditions are fulfilled in the circumstances of the case. If the national court were to find that there has been abuse of a dominant position, only the part of the proceeds of the charge that is allocated to the AMMs would be incompatible with Community law;

(2) constitutes State aid within the meaning of Article 87(1) EC, which requires that the national courts intervene if the conditions of Article 88(3) EC are met. The question as to which domestic measure is affected by the invalidity is a matter for national law;

(3) does not constitute a charge prohibited by Article 25 EC as having an effect equivalent to an import duty, an internal tax on products from other Member States in excess of the charge levied on similar domestic products within the meaning of Article 90 EC or a barrier to imports, prohibited by Article 28 EC.