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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Kingdom of Spain [2002] EUECJ C-409/00_O (10 September 2002 ) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C40900_O.html Cite as: EU:C:2002:475, ECLI:EU:C:2002:475, [2002] EUECJ C-409/_O, [2002] EUECJ C-409/00_O

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OPINION OF ADVOCATE GENERAL

ALBER

delivered on 10 September 2002 (1)

Case C-409/00

Kingdom of Spain

v

Commission of the European Communities

(State Aid - Transport - Commission notice on the ‘de minimis’ rule for State aid - Relevant market - Transport services on own account - Transport services for hire or reward - Community guidelines on State aid for environmental protection)

I - Introduction

1.

    This application by the Kingdom of Spain seeks the annulment of Commission Decision 2001/605/EC of 26 July 2000 on the aid scheme implemented by Spain for the purchase of commercial vehicles via the Cooperation Agreement of 26 February 1997 between the Ministry of Industry and Energy and the Official Credit Institute (hereinafter, the ‘Agreement’). (2) The Commission has declared aid linked to the withdrawal of old vehicles from the market to be largely unlawful and incompatible with the common market and ordered its recovery.

2.

    The Agreement continues the aid system introduced under the ‘Plan Renove Industrial’ for the period from August 1994 to December 1996 in essentially the same form from 1 January 1997 onwards. The rules relating to the ‘Plan Renove Industrial’ system of aid are the subject of Commission Decision 98/693/EC of 1 July 1998 (hereinafter, ‘Decision 98/693’). (3) Spain lodged an application with the Court against that decision in Case C-351/98. The Opinion in that matter, which, apart from the first plea, has many parallels with the present case, was delivered on 7 May 2002. (4) The Court of First Instance has dismissed another application lodged against Decision 98/693 by Confederación Española de Transporte de Mercancías (CETM) in its judgment of 29 September 2000. (5)

II - Facts of the case and contested decision

3.

    The Agreement concluded on 26 February 1997 provides that natural persons and small and medium-sized enterprises (hereinafter, ‘SMEs’) should be given an interest-rate subsidy on four-year loans for purchasing commercial vehicles or leasing them with the intention to purchase, amounting to a maximum of 70% of the cost of the vehicle. The maximum subsidy is ESP 85 000 (EUR 511) per million ESP (EUR 6 010) loaned.

4.

    Under the Agreement the Official Credit Institute (Instituto de Credito Oficial, hereinafter the ‘ICO’) opens a line of credit of ESP 35 billion (EUR 210 million). The Ministry for Industry and Energy compensates the ICO up to a maximum of 4.5 percentage points for the difference between the interest rate for funding under the aid scheme and the normal market rate of interest. The aid budget is for a total of ESP 3 billion (EUR 18 million).

5.

    The interest-rate subsidy was granted to fund the acquisition of vehicles in the following six categories: tractor units and lorries weighing over 30 tonnes (Category A); commercial vehicles weighing between 12 and 30 tonnes (Category B); commercial vehicles weighing between 3.5 and 12 tonnes (Category C); car-based vehicles, vans and lorries weighing up to 3.5 tonnes (Category D); buses and coaches (Category E); trailers and semi-trailers (Category F).

6.

    The essential condition for obtaining a subsidy to purchase a new vehicle is the requirement that a vehicle of equal or higher capacity first registered in Spain more than ten years ago (seven years ago in the case of tractor units) should be irrevocably withdrawn from the market.

7.

    The Spanish Government notified the Commission of the Agreement by a note dated 26 February 1997, the date on which the Agreement entered into force with retrospective effect from 1 January 1997. The Commission sent a request for further information to the Spanish Government on 3 April 1997. After the Spanish authorities had asked on five occasions between 30 April and 9 October 1997 for additional time to forward the information requested, and as the information requested had still not been received by 10 November 1997, the Commission began a preliminary investigation of the measure on the basis of the information available to it.

8.

    By letter of 20 November 1997 the Commission informed the Spanish Government of its decision to initiate the procedure provided for in Article 88(2) EC. (6) The Spanish Government submitted its comments on the opening of the formal investigation procedure to the Commission by letter of 22 February 1999.

9.

    On 26 July 2000 the Commission adopted the contested decision, the operative part of which contains inter alia the following provisions:

‘Article 1

Financial aid granted under the Cooperation Agreement of 26 February 1997 to natural persons registered for Spanish tax on economic activities or SMEs engaged in a business other than transport and operating on a solely local or regional level for the purchase of a commercial vehicle covered by Category D in the Agreement does not constitute aid within the meaning of Article 87(1) of the Treaty.

Article 2

All other financial aid granted under the Cooperation Agreement of 26 February 1997 to natural persons registered for Spanish tax on economic activities or to SMEs is incompatible with the common market.

...

Article 4

1.    Spain shall take all necessary measures to recover from the recipients the aid referred to in Article 2 made available to them unlawfully.

...’

III - Procedure and relief sought

10.

    By written pleading entered in the register of the Court of Justice on 10 November 2000 the Kingdom of Spain brought an action pursuant to Article 230 EC claiming that the Court should:

(1)    annul the Commission decision of 26 July 2000 and

(2)    order the Commission to pay the costs of the proceedings.

11.

    The Commission asks the Court to:

(1)    dismiss the claim and

(2)    order the Kingdom of Spain to pay the costs of the proceedings.

12.

    In the interests of clarity the parties' arguments will be presented separately in the legal analysis of the individual claims.

IV - Legal analysis

13.

    The Kingdom of Spain bases its action on five grounds:

-    the indeterminate nature of the contested decision,

-    non-selective aid,

-    absence of discrimination,

-    absence of distortion of competition and

-    the infringement of Article 87(3)(c) EC (compatibility of aid to facilitate the development of certain economic activities ).

14.

    The Commission has filed two objections to the admissibility of the first plea. However, these objections do not, in fact, relate to just that plea alone, but to the admissibility of the whole procedure.

15.

    The Commission argues, firstly, that it is contrary to Spain's own interests to dispute the provision in Article 1 of the contested decision that is in its own favour. In doing so, it is essentially calling into question Spain's interest in bringing proceedings in that the procedure is directed at a provision which is not unfavourable to Spain. If the Commission's view were to be accepted, the Spanish Government should have deleted Article 1 of the contested decision from its application for annulment.

16.

    The Commission considers, secondly, that Spain does not yet have any interest in contesting the decision as it has not made any attempt to implement the decision by recovering the aid granted. This argument too relates to the proceedings as a whole.

17.

    In putting forward these arguments the Commission is responding to the objection as to the indeterminate nature of the contested decision. To be comprehensible, however, Spain's arguments on this plea must first be made clear. The inadmissibility arguments will therefore be examined at a later juncture, in conjunction with the parties' arguments on the first plea set out below.

A - The admissibility of the proceedings and the first plea in law: The indeterminate nature of the contested decision

1.    Arguments of the parties

(a) Kingdom of Spain

18.

    In the opinion of the Spanish Government no precise boundary is drawn between subsidies that do not constitute aid according to Article 1 of the contested decision and the other subsidies to which objection is raised.

19.

    Article 1 lays down three criteria: the recipient's activity must be confined to local or regional level, it must be engaged in a business other than transport and the vehicle purchased must be in Category D (a maximum permitted weight of 3.5 tonnes). Under Spanish law on road transport licences, however, distinction is only drawn between light commercial vehicles (with a total permissible weight of between 2 and 6 tonnes or with an additional load of up to 3.5 tonnes) and heavy commercial vehicles. Since 2 January 1998 all local and regional licences for the operation of light commercial vehicles by non-professional carriers have automatically been converted to licences with national validity.

20.

    Because of its indeterminate nature, the decision has not taken full effect. (7) It logically follows from the indeterminate nature of the group of beneficiaries who come within Article 1 of the contested decision that Article 2 must also be considered indeterminate.

21.

    The Spanish Government has submitted details of the national rules on the licensing of public transport (‘transportes públicos’), that is to say, the carriage of passengers and goods for hire or reward, and the licensing of private transport (‘transportes privados’), that is to say, transport for own account by private individuals and transport by undertakings whose principal activity is not transport (‘transportes privados complementarios’). These rules show that, in the case of transport for own account using vehicles in Category D, the licence always has national validity so that the criteria laid down in Article 1 regarding exclusively local or regional activity and transport for own account can never be simultaneously satisfied.

22.

    The Spanish authorities had pointed out this fact in its letter of 29 January 1999. In disregarding the arguments set out in that letter, the Commission had infringed Spain's right to a fair hearing. Even after the decision was received, the Spanish Government brought the difficulties in distinguishing between the groups of beneficiaries covered by Article 1 and Article 2 to the attention of the Commission in its letter of 6 November 2000.

23.

    The Kingdom of Spain points out that the rule in Article 1 does not constitute an exemption in its favour, or any kind of preferential treatment, but is a question concerning the application of Article 87(1) EC, which is amenable to a comprehensive judicial review. (8) The purpose of the legal proceedings is not to contest the finding that the subsidies to the group of recipients stipulated in Article 1 do not constitute aid. The intention is to obtain a ruling that none of the cases covered by the decision constitute State aid. Alternatively, a reasonable dividing line should at least to be drawn between what does and does not constitute financial aid.

24.

    In its reply the Spanish Government also criticises the inadequacy of the statement of reasons. In the statement of reasons for the decision, to which the Commission refers to explain the distinction drawn, no mention is made of the fact that the group of recipients covered by Article 1 cannot be determined from the road licences.

(b) Commission

25.

    The Commission considers the plea to be inadmissible. It is contrary to the applicant's own interests to dispute Article 1 of the contested decision, which contains an exemption in its own favour. If the group described in that provision did not actually exist, it would mean that the subsidies would have to be repaid by all of the recipients in accordance with the other provisions of the contested decision.

26.

    Spain did not advance this argument against the provision in Decision 98/693, the wording of which is identical in this respect. The Commission also discussed the exemption with Spain. Spain had wanted even wider exemption for non-professional transport using Category C vehicles with national transport licences, but the Commission refused to allow this.

27.

    Alternatively, the Commission argues that Article 1 of the contested decision does not require the existence of a definitive geographically restricted licence; it requires the actual activity to be confined to a local or regional area. The mere fact that there have only been licences with national validity since 1998 shows that licensing as a criterion is unsatisfactory. Experience has shown that not all Spanish SMEs operate transport services nationwide.

28.

    The plea is also inadmissible for another reason. This plea is tantamount to arguing that it would be impossible to implement the order to effect recovery because of the alleged indeterminate nature of the decision. If a Member State encounters such difficulties it is obliged, according to case-law, (9) to work with the Commission to find a solution in a spirit of genuine cooperation; it must not simply fail to implement it. The large number of recipients does not make recovery impossible, in any event. (10) Since the applicant has not even made any attempt to implement the decision it does not yet have any reason to challenge it.

29.

    Spain is basing its claim on an illusory problem. The statement of reasons in the decision shows that the Commission took as its basis for delimitation the actual activity of the recipients and not the existence of certain licences. On receiving the contested decision Spain could have approached the Commission to discuss the significance of licences to the issue of determination of the parties against whom recovery was to be effected. (11) Reference could have been made to information provided by financial institutions or to details provided by the recipients themselves in order to establish which recipients were actually covered by the exemption. It would also have been quite possible to use the existence of a local or regional licence as an indication since those licences were not converted into national licences until 1998, that is to say after the incentive period had come to an end.

30.

    The Commission opposes the argument that Spain had attempted, by its letter of 6 November 2000, to overcome the difficulties in connection with the meaning or implementation of the contested decision in a spirit of genuine cooperation with the Commission. In that letter the Spanish Government simply insisted that its national licensing system should be taken into consideration.

(2)    The admissibility of the proceedings

31.

    As already stated, the Commission's argument that Spain does not have any reason to challenge the provision in its favour contained in Article 1 of the contested decision essentially relates to the requirement on Spain to have an interest in bringing proceedings in order for the action to be admissible.

32.

    The extent to which Member States, as privileged applicants under the second paragraph of Article 230 EC, are under any obligation to prove an interest in bringing proceedings as a requirement for admissibility is not established beyond all doubt in current case-law. The Court of Justice has stated ‘that Article 173 of the EEC Treaty draws a clear distinction between the right of action available to the Community institutions and the Member States on the one hand and that available to natural or legal persons on the other. The first paragraph of Article 173 gives each Member State, inter alia, the right to bring an action for annulment in order to challenge the legality of any Council directive without making the exercise of that right conditional on proof of an interest in bringing proceedings’. (12)

33.

    On the other hand, it has ruled in its recent judgment in Case C-242/00 that an action brought against a decision, which does not by itself have a scope unfavourable to the applicant Member State and thus does not adversely affect it, must be dismissed as being inadmissible. (13) A distinctive feature of that case, however, was that the Commission's contested decision had allowed a proposal made by the applicant Member State.

34.

    The abstract question of the extent to which a Member State must prove an interest in bringing proceedings is only of significance to the resolution of the present case and only ultimately requires clarification if it is at all possible for the rule favourable to Spain contained in Article 1 of the contested decision to be assessed separately from its other provisions.

35.

    The provision in Article 2 unfavourable to Spain applies to ‘all other financial aid’ - that is to say, financial aid that does not come within the scope of Article 1. The aid prohibited under Article 2 cannot therefore be determined until the aid covered by Article 1 has been defined. If Article 1 does indeed contravene the principle of certainty, that error in law also has repercussions on Article 2. The two provisions are therefore indivisible. Hence, it follows that the applicant is not devoid of any interest in bringing proceedings to challenge the decision as a whole.

36.

    Nor is the action inadmissible because the Spanish Government is relying, in effect, upon the impossibility of implementing the decision without first attempting to implement it and trying to overcome any possible difficulties in a spirit of genuine cooperation with the Commission. There is no need to ascertain how the exchange of views on this problem between the Spanish Government and the Commission should be evaluated.

37.

    The decisive factor is that the Spanish Government is primarily relying on an infringement of the principle of legal certainty. If such an error in law were to have been made, the decision would have to be annulled without the Spanish Government being under an obligation to enter into consultations with the Commission before bringing an action for annulment. In view of the limitation period of two months laid down in paragraph five of Article 230 EC, the admissibility of an action for annulment cannot depend on whether an attempt has been made to implement the decision and, if difficulties then arise, on whether the Commission has been consulted.

38.

    Nevertheless, neither the instigation of proceedings per se nor the allegation made in the proceedings that a decision is too indeterminate can release the Kingdom of Spain from its obligation to implement the decision. Under the first sentence of Article 242 EC, actions brought before the Court of Justice do not have suspensory effect. It would also undermine the real purpose of Articles 87 and 88 EC if a Member State were to be released from its duty to implement a decision by the Commission merely because it alleged that it was indeterminate, with the result that the breach of competition rules would continue until such time as judgment was pronounced by the Court of Justice.

(3)    Analysis of the first plea

39.

    It should be stated, first of all, that the Spanish Government is not precluded from objecting to the indeterminate nature of the contested decision in these proceedings even if it did not include that argument in connection with Decision 98/693. The two actions are quite independent of each other and based on different decisions. Where provisions are identical the applicant is not obliged to plead the same arguments in both actions.

40.

    As the Court of Justice has already ruled, the principle of legal certainty, which is part of the Community legal order, requires that any act of the administration that has legal effects must be definitive, in particular as regards its author and content. (14) It must be clear to the addressee what obligations the act imposes on him. In establishing whether an act is sufficiently definitive, account is to be taken not only of the operative part of the act, but also of the statement of reasons for it, which is indissociably linked to the operative part. (15)

41.

    The contested decision is sufficiently determinate. Article 1 defines which subsidies do not constitute financial aid by reference to various factual criteria. Recipients may only engage in transport on their own account on a local or regional level and only the incentive to purchase a vehicle in Category D (commercial vehicles weighing up to 3.5 tonnes) is permitted. In paragraph 29 of the decision the Commission states its reasons for such delimitation in more detail.

42.

    The Kingdom of Spain can establish the group of aid recipients addressed on the basis of those criteria. The aid is to be recovered from all of the other recipients under Article 4 of the contested decision in conjunction with Article 2.

43.

    The Commission did not take the scope of the aid recipients' transport licences as the basis for its contested decision. Nor is this the criterion to be applied when assessing the subsidies in the light of the rules on competition and intra-Community trade. It is, in fact, only the de facto transport-market situation that is of significance for this purpose. Intra-Community trade is not noticeably affected by aid to SMEs which carry out transport services on their own account at a regional level, irrespective of whether those enterprises hold licences that are purely regional or nationwide.

44.

    The argument put forward by the Spanish Government, that there are no aid recipients who carry out transport services on their own account using vehicles in Category D and also hold purely regional licences, is therefore immaterial. Nor does the fact that the Commission did not expressly reject that argument in the contested decision mean that the statement of reasons was insufficient. The statement of reasons clearly shows that the Commission took the factual circumstances into account - not the licences held by the aid recipients. The Commission did therefore provide adequate explanation for its decision.

45.

    Nor has there been any infringement of the principle of a right to a fair hearing. The Commission was not obliged to take up Spain's suggestion that the distinction should be drawn with reference to vehicle categories under the Spanish licensing system. The principle of a right to a fair hearing only requires the party concerned to be given an opportunity to make representations - the Commission does not have to accept the changes suggested. It should also be noted that the Commission followed the classification undertaken by the Spanish authorities in the Agreement itself by referring in Article 1 of the decision to vehicles in Category D.

46.

    It might certainly be difficult in practice to establish which actual aid recipients come within the scope of application of Article 1 and Article 2 of the contested decision. However, this is a quite separate issue to that of the (in-) determinate nature of the legal definition of the subsidies referred to in each case. Those difficulties are essentially due to the fact that there are a large number of aid recipients and that, in order to classify the aids in question, certain facts will have to be established in each individual case, including inter alia the scope of activity carried out by each of the recipients. However, these are practical difficulties in the implementation of Article 4 of the contested decision that the Spanish authorities have to resolve - if necessary in cooperation with the Commission. (16) If the Spanish authorities had awaited the Commission's decision before granting the aid, as provided in the second sentence of Article 88(3) EC, these problems would not have arisen.

47.

    The first plea is therefore not well-founded.

B - The second plea in law: Non-selective aid

(1) Arguments of the parties

(a) Kingdom of Spain

48.

    Even if the only enterprises that are entitled to the subsidy are those that use a commercial vehicle, according to the Spanish Government the measure would not favour certain undertakings or the production of certain goods within the meaning of Article 87(1) EC. The Agreement is not aimed at a certain pre-determined group of beneficiaries. It is a horizontal measure favouring undertakings in general that find themselves in a similar situation. The fact that only SMEs would benefit is also just a general horizontal criterion.

49.

    If - as in this case - a measure is directed at an abstract group of recipients and does not exclude certain undertakings or the production of certain goods, the measure is not selective and hence does not constitute State aid. (17) The Court of Justice has therefore considered a measure not to be selective merely because it favours undertakings that employ manual workers. (18)

50.

    The Spanish Government points out that, pursuant to Article 2.1(b) of the Agreement on Subsidies and Countervailing Measures (WTO-GATT 1994), (19) a subsidy is not deemed to be specific if it is linked to neutral and horizontally applicable requirements and if the authorities are not given any discretionary power, as in the case of the Agreement. Mr Advocate General Darmon also referred to the GATT concept of subsidies in the Sloman Neptun case. (20)

51.

    These criteria correspond to the rule under Community law that selectivity does not exist where the benefit arises from the nature or internal structure of the underlying system. (21) The Agreement covers all SMEs that were intended to be favoured under the very structure of the scheme for reasons of environmental protection and improved road safety and only excludes large undertakings in furtherance of the objectives of the scheme.

(b) Commission

52.

    The Commission refutes the argument that the Agreement does not constitute financial aid purely because it is directed at an abstract group of possible recipients. This is so with any programme of financial aid.

53.

    Unlike the case on subsidies to employ manual workers cited by the applicant, certain sectors were excluded from benefit in the present case right from the outset, namely those service undertakings that did not need commercial vehicles. This was, in reality, a sectoral measure favouring road transport. The size of the undertakings was a further criterion distinguishing the group of recipients.

54.

    The Commission opposes the analogy with complex social security and tax systems. A measure cannot be denied aid status and be made part of a general system simply because a subsidy is linked to certain criteria and pursues certain objectives.

55.

    Nor does the fact that the authorities are not afforded any discretion in the implementation of the measure preclude selectivity. Discretion is exercised at a higher level when determining the criteria for incentives. The monitoring of aid is also not based on the WTO Agreement cited by the applicant but on Community law, which has more far-reaching objectives than WTO law.

(2) Analysis

56.

    For a measure to be classified as State aid, Article 87(1) EC requires that it favour certain undertakings or the production of certain goods.

57.

    Who the actual recipients are does not, however, need to be known from the outset. It follows from the very wording of Article 87(1) EC, according to which it is enough for the production of certain goods to be favoured, that an abstract definition of possible recipients is enough for a measure to be regarded as selective.

58.

    If the Spanish Government's approach were taken to its logical conclusion, statutory aid schemes or aid programmes would never be regarded as State aid since they typically define no more than abstract criteria for determining those who are to benefit. In fact, only subsidies granted on the basis of such general schemes could be measured against the standard set by Article 87 EC. The Court of Justice, however, has been repeatedly confronted with aid programmes and statutory aid schemes without expressing any doubt about their selectivity because the potential recipients were defined only by means of abstract criteria, not specifically named. (22)

59.

    That a measure is not a subsidy within the meaning of the WTO Agreement on Subsidies and Countervailing Measures is irrelevant to its classification as State aid within the meaning of Article 87 EC. Although Mr Advocate General Darmon also referred to the concept of subsidy under the GATT anti-subsidy code in the Sloman Neptun case while comparing legal systems, (23) he did not draw any compelling conclusions for Community law. The Community is not, in any case, legally prevented from classifying as aid a measure which is not a subsidy according to the WTO agreement and applying, in this respect, stricter standards in its internal legal system than are required in the context of international law.

60.

    The subsidy under the Agreement would not be selective within the meaning of Article 87(1) EC only if it benefited all domestic undertakings without distinction. (24)

61.

    As the Commission rightly emphasises, only undertakings needing commercial vehicles for their economic activities may claim the subsidy. Certain branches of the economy, such as the liberal professions, are thus almost entirely excluded from the subsidy.

62.

    The Agreement also results in different levels of benefit to different industries. As there is no limit to the number of vehicles subsidised per applicant, undertakings can benefit from the programme to different degrees depending on the significance of transport in their area of commercial activity. The Agreement also differs from a permissible general measure in that only natural persons and SMEs may claim the subsidy.

63.

    The question is whether these distinctions are justified by the nature or internal structure of the general system of which the measure forms part. The Court of Justice first developed this idea in the case of Italy v Commission. (25) This argument has since been frequently discussed, especially in connection with tax concessions and reductions in social security contributions. (26)

64.

    The facts in the present case differ from the circumstances in the cases cited in that the benefit consists not in exemption from a general burden but simply in the preferential treatment accorded to certain undertakings on environmental and transport policy grounds.

65.

    The fact that the Spanish Government pursues specific policy objectives with the Agreement does not make the measure a general system within which certain distinctions inherent in the system are made. (27) A system can be designated general only if, in principle, it extends to all domestic undertakings, as is true, for example, of the system of taxation or social security contributions. Undertakings which are not SMEs or do not need commercial vehicles are not, however, affected by the Agreement.

66.

    As, moreover, Spain has also failed to show that the Agreement forms part of an overriding system of some kind, justification cannot be derived from a distinction inherent in the system.

67.

    The second plea should therefore also be dismissed.

C - The third plea in law: Absence of discrimination

68.

    It should be noted, with regard to the third plea, that the Commission did not raise any objection in the contested decision regarding discrimination against recipients according to nationality. The passage cited by the Spanish Government in its application does not come from the contested decision, but from Decision 98/693. Hence, this plea need not be examined separately. The presence or absence of discrimination between nationals of different Member States could be significant, however, to the question of an effect on intra-Community trade. This aspect should therefore be considered during discussion of the fourth and fifth pleas.

D - The fourth plea in law: Competition not distorted

(1)    Arguments of the parties

(a)    Kingdom of Spain

69.

    The Spanish Government opposes the finding in the contested decision that the subsidies distort competition and threaten to impair trade between Member States in that they relieve carriers (both professional and non-professional) in competition with firms from other Member States from the normal burden of costs.

70.

    It considers that, just as with the subsidies to undertakings that engage in own-account transport at regional level using small vehicles, the subsidies to all of the other parties benefiting from the Agreement did not distort competition either, because of the low level of competition. This can be seen from the Community guidelines on State aid for small and medium-sized enterprises (hereinafter, the ‘SME Community guidelines’). (28) Although they do not apply in the transport sector, the ‘de minimis’ rule is nevertheless relevant to the present case as a general principle.

71.

    In the oral procedure the Spanish Government argued, with reference to the Opinion in Case C-351/98, that the ‘de minimis’ rule should apply where benefit is afforded to undertakings engaged in transport solely for their own account. Those undertakings are not in competition with undertakings providing transport services for hire or reward.

(b) Commission

72.

    The Commission maintains that the ‘de minimis’ rule is not applicable in the transport sector, which also covers own-account transport. Since this sector is highly fragmented and beset with over-capacity, even very low levels of aid might result in competition being distorted. (29) Recipients of the subsidies were given an advantage over undertakings situated in other Member States and large undertakings with which they were - actually or potentially - in competition.

73.

    The arguments raised by the Spanish Government in the oral procedure were opposed by the Commission on the grounds that they were out of time and also rejected by it in substance. Own-account transport also formed part of the transport market since it is interchangeable with activities provided by professional transport undertakings engaged in operations for hire or reward.

(2) Analysis

74.

    Article 87(1) EC prohibits State aid that distorts or threatens to distort competition and affects intra-Community trade.

75.

    In an examination of the assessment that the Commission has undertaken in respect of these premises in the contested decision, it must be borne in mind that it enjoys substantial freedom of assessment in the application of Article 87 EC. The Court of Justice must not therefore substitute its own assessment for the Commission's, but confine itself to considering whether the assessment contains a manifest error or constitutes a misuse of power. (30)

76.

    In the application of Article 87 EC the Commission is able to base its decisions on guidelines and communications. In view of the level of aid provided under the Agreement the Commission might possibly (31) have applied the communication on ‘de minimis’ aid and, on this basis, declared the measures to be compatible with the common market. It refused to do so, however, because it believes this to be a measure in the transport sector, in which the communication is not applicable.

77.

    However, only some of those who benefit from the Agreement are undertakings that provide transport services for hire or reward, i.e. transport undertakings in the narrower sense. It also benefits undertakings operating mainly in other sectors of the economy and using commercial vehicles of their own for their own account in doing so.

78.

    In the oral procedure the Spanish Government complained that the Commission even assigned the measure to the transport sector where benefit is afforded to undertakings engaged in own-account transport, thus ignoring the ‘de minimis’ rule. Contrary to the view expressed by the Commission, this argument should not be dismissed as out of time. The Spanish Government has already raised this question in the application. It is therefore not a new argument, just an extension of the plea in law already submitted.

79.

    As regards what is meant by own-account transport, point 4 of Annex I to the First Council Directive of 23 July 1962 on the establishment of certain common rules for international transport (carrying of goods by road for hire or reward), (32) as amended by Council Regulation (EEC) No 881/92 of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States, (33) contains an accurrate definition of that concept. (34)

(a) Exclusion of the application of the ‘de minimis’ rule (first part of the fourth plea)

(i) Importance of guidelines

80.

    In its communication on ‘de minimis’ aid, to which the 1996 SME Community guidelines refer, (35) the Commission adopted a rule on the interpretation of Article 87(1) EC. Put simply, the rule states the following: where the total amount of aid does not exceed ECU 100 000 in three years, it is assumed that it does not have any appreciable impact on trade or competition between Member States. Below this ceiling, Article 87(1) of the Treaty is deemed not to be applicable. (36)

81.

    The Court of Justice has commented on the importance of guidelines in the area of aid supervision on several occasions, stating in particular ‘that the Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty’. (37)

82.

    The judgment in CIRFS also reveals that the Commission must comply with any guidelines it adopts. (38) But that case concerned ‘aid discipline’ in the synthetic fibre industry, which had been adopted with the approval of the Member States as an appropriate measure based on Article 88(1) EC. (39) However, this statement is true mutatis mutandis of the guidelines laid down by the Commission in the communication on ‘de minimis’ aid. (40)

83.

    The ‘de minimis’ rule was published both to simplify administration and to ensure transparency and legal certainty. (41) In particular, the Commission makes it clear to the Member States when notification of a measure pursuant to Article 88(3) EC is unnecessary. This objective is achieved only if the Commission itself is bound by the rule. From this it follows that it is not within the Commission's discretion to decide whether or not it applies the rule: it must observe the sphere of application of this guideline as defined in the ‘de minimis’ communication.

(ii)    No application of the ‘de minimis’ rule to aid in the transport sector

84.

    According to the wording of the ‘de minimis’ communication, it is not applicable in the transport sector. The Commission has given a broad interpretation to the term ‘transport sector’. According to this interpretation, the transport sector includes any transport operation regardless of whether it is effected by a transport undertaking for hire or reward or by an undertaking in another industry for its own account.

85.

    The Spanish Government, on the other hand, appears to advocate a narrower interpretation. The ‘de minimis’ rule would then be applicable only to aid to transport undertakings, i.e. undertakings whose principal economic activity consists in the provision of transport services for hire or reward.

86.

    The exclusion of the transport sector in the ‘de minimis’ communication must be interpreted in the context of the purpose of this provision. The communication itself does not give any information on this, however. The only explanation in the 1992 SME Community guidelines, of which the ‘de minimis’ rule originally formed part, is that the Community guidelines do not apply in sectors in which special legislation has been adopted.

87.

    In the contested decision and in the procedure before the Court of Justice the Commission has given as the reason for the exclusion of the transport sector that in this sector, with its many small undertakings, even relatively small amounts of aid might have an impact on intra-Community competition and trade. The exclusion therefore takes account of the specific conditions in the transport market.

88.

    The question is what services this transport market comprises. Services are to be attributed to the same market where they are likely to meet the same need, services with different features forming a market only where they are interchangeable to more than a limited extent. (42)

89.

    In paragraph 28 of the contested decision the Commission stated that the scheme is de facto aimed at undertakings providing transport services either on own-account or for hire or reward. It did not state in more detail the extent to which these two forms of provision of transport services are interchangeable and therefore form part of the same market.

90.

    The Commission does nevertheless concede in paragraph 29 of the contested decision that it would not be economically viable for undertakings engaged in own-account transport using vehicles weighing up to 3.5 tonnes at local or regional level to entrust a transport company with the provision of such services. Hence the measures favouring those recipients in Article 1 of the contested decision are not classified as State aid within the meaning of Article 87(1) EC.

91.

    However, the Commission has not taken into account the fact that it can also be more advantageous for undertakings that use larger commercial vehicles and engage in transport services over longer distances to use their own vehicles rather than entrust transportation to a third party. The holder himself may, for example, decide to use his own vehicle at any time and does not depend on the availability of appropriate services of a third party. Where an undertaking carries out own-account transport operations, the carriage of goods and passengers is, moreover, often associated with the provision of other services in the sphere of its principal commercial activity, such as the installation and assembly of the goods transported. Having a third party transport the goods concerned hardly seems expedient, even in cases other than those acknowledged by the Commission.

92.

    An SME that already undertakes own-account transport with a vehicle of its own has at some stage opted in principle for this form of organisation with due regard for its specific needs and invested in a vehicle. It will be at pains to use this vehicle to make the investment and running costs worthwhile. It will consider assigning the work concerned to a third party only if general conditions have so changed that a departure from the original decision to operate a vehicle itself seems advantageous. A small subsidy to buy a new vehicle, such as that for which provision is made in the Agreement, is hardly likely to influence that decision to a material extent.

93.

    The Commission has failed to realise that such a reorganisation of transport activities occurs, at best, in the long term. It has wrongly assumed that the two forms of transport are interchangeable in such a way that a current competitive relationship and thus a single market can be assumed.

94.

    A further argument for considering own-account transport separately is that a distinction is also made between transport for hire or reward and own-account transport in the provisions of secondary law concerning access to the market in the carriage of goods by road in the Community. Own-account transport is exempted from all rules on Community authorisation and other carriage authorisation with which compliance is otherwise necessary for access to the intra-Community carriage of goods by road. (43)

95.

    Given an appropriate interpretation of the ‘de minimis’ rule, it should not apply only in the event of concessions made to transport undertakings providing commercial transport services for hire or reward. Only such undertakings operate in the transport services market, which is characterised by a large number of undertakings and in which even small amounts of aid may lead to a distortion of competition.

96.

    Even if they engage in transport activities for their own account, other undertakings should not be regarded as operators in the transport market. Instead, the rules that govern the sector in which they are principally active should apply to them. Provided that such undertakings do not belong to other exempted sectors and the other requirements of the ‘de minimis’ rule are satisfied, subsidies received by such undertakings under the Agreement do not constitute aid within the meaning of Article 87(1) EC.

(iii) Interim conclusion

97.

    The Commission's error in the application of the ‘de minimis’ rule leads to the complete annulment of the contested decision.

98.

    A partial annulment of the decision, limited to the part which concerns aid to undertakings engaged in own-account transport, is not an option open to the Court of Justice. By partially annulling the decision, the Court of Justice would be anticipating a correct, new definition of the market and so substituting its assessment for the Commission's. It is for the Commission to reassess the measure as a whole with the ‘de minimis’ rule applied correctly. What must be considered in this context is whether the subsidy received by non-professional carriers meets the requirements of the ‘de minimis’ rule and, in particular, whether compliance with the value limit is ensured and cumulation with other aid is excluded.

99.

    To ensure a comprehensive examination of all the pleas and in case the Court does not share the views expressed here, the examination should be continued.

(b)    Competition distorted and trade affected within the meaning of Article 87(1) EC (second part of the fourth plea)

100.

    Should the Court of Justice come to the conclusion that the Commission was right to regard the ‘de minimis’ rule as inapplicable, it is necessary to consider whether its contention that concessions under the Agreement distort or threaten to distort competition and affect intra-Community trade under Article 87(1) EC is free from manifest errors of assessment.

101.

    To ascertain what influence the measures have on competition, the market affected by the subsidies first needs to be defined.

(i)    Definition of the relevant market

102.

    In the contested decision the Commission equated own-account transport with transport for hire or reward, without making any detailed statements defining the relevant market.

103.

    The comments on the definition of the transport sector within the meaning of the ‘de minimis’ communication apply mutatis mutandis to the definition of the market as regards the application of Article 87(1) EC. Transport operations effected by an undertaking with its own vehicles for its own account cannot simply be replaced by external transport services. These two forms of transport do not therefore form a single market.

104.

    Above all, the Commission has not explained why transport operations hitherto effected by an undertaking with its own vehicles as operations subsidiary to another principal activity are indeed interchangeable with the services provided by third parties. The fact that the corresponding group of beneficiaries under the Agreement have hitherto used their own vehicles for these purposes argues against interchangeability.

105.

    Thus the contested decision should also be annulled because of the erroneous definition of the relevant market.

(ii)    Competition distorted and trade affected

106.

    If the market in professional transport for hire or reward is considered on its own, the Commission's statements in the contested decision about competition being distorted and intra-Community trade being affected cannot be disputed.

107.

    As the Commission rightly stated in paragraph 25 of the contested decision, the intra-Community transport market, including the cabotage market, has now undergone complete liberalisation, so that Spanish undertakings are liable to compete with undertakings from other Member States.

108.

    The Agreement gives transport sector SMEs established in Spain an advantage over large undertakings and undertakings with registered offices in other Member States which, in practice, can only theoretically apply for subsidies on the same terms as Spanish undertakings. Unlike those Spanish undertakings, undertakings from other Member States will not generally have at their disposal commercial vehicles registered in Spain which can be withdrawn from the market and replaced with new subsidised vehicles.

109.

    The Spanish Government has argued in relation to the third plea that the Agreement does not discriminate against undertakings from other Member States. Since the vehicle withdrawn from the market does not have to be owned by the recipient of the subsidy, they could come to an agreement with the holder of a vehicle registered in Spain for that vehicle to be withdrawn. Furthermore, it would also be possible to export a commercial vehicle to Spain, register it there and then withdraw it from the market. However, the ways in which the Spanish Government claims undertakings from other Member States can meet the requirements for obtaining subsidies are associated with additional costs disproportionate to the amount of the subsidy granted. Hence undertakings from other Member States are at least indirectly adversely affected by the Agreement.

110.

    Although the subsidy contributes towards an acquisition, it must be classified as operating aid. As it is to be used for the acquisition of a new vehicle to replace a commercial vehicle at least ten years old, the recipients are relieved of costs which they would normally have to bear in the course of their usual business activities. The acquisition is not accompanied by a realignment or expansion of operations that gives rise to unusual financial requirements. Operating aid is deemed in settled case-law to distort competition because it improves the financial position and scope for action of the recipient undertakings as compared to undertakings which do not receive operating aid. (44)

111.

    Where the position of domestic undertakings competing with undertakings from other Member States is strengthened by subsidies from State resources which distort competition, intra-Community trade is also affected. (45)

112.

    The Spanish Government contends that the ‘de minimis’ rule applies in the transport sector even though it does not come within the scope of application of the SME Community guidelines.

113.

    It should be stated, firstly, that it is not only the 1992 and 1996 SME Community guidelines that exclude the transport sector from their scope of application. The ‘de minimis’ communication, to which the 1996 SME Community guidelines refer, also clearly states that it does not apply to that sector.

114.

    However, the Spanish Government's argument appears to be based on the assumption that the ‘de minimis’ rule is a general principle of Community law on aid that applies irrespective of such Commission communications.

115.

    The Court of Justice did not accept that argument in its judgment in Case C-156/98 in which it referred to its settled case-law that says that the fact that the aid is comparatively limited in scale and is granted only to undertakings of a limited size does not rule out the possibility of intra-Community trade being affected. (46) The Court of Justice has also stated that even relatively minor amounts of aid may affect trade between Member States if there is strong competition in the sector concerned. (47)

116.

    The cautious wording used by the Court of Justice (does not rule out the possibility of intra-Community trade being affected; minor amounts of aid may affect trade) certainly indicates that not all small amounts of aid necessarily affect intra-Community trade and hence come under the prohibition in Article 87(1) EC. If this were correct, the ‘de minimis’ communication would be inconsistent with the Treaty since, in the ‘de minimis’ communication, the reason given for the non-application of Article 87(1) EC is that minor amounts of aid do not have any appreciable effect on competition and trade between Member States.

117.

    In view of the special characteristics of the transport market, which - as the Commission has stated without being challenged - is highly fragmented and beset by overcapacity, the Commission's assumption that intra-Community trade is affected by the aid proposed in the Agreement does not, however, constitute a manifest error of assessment. In a strongly contested market even aid that falls below the threshold laid down in the ‘de minimis’ communication can afford the recipient an appreciable advantage over competing transport undertakings in other Member States. As already stated, however, this only applies to professional transport services.

(3)    Conclusion

118.

    As the Commission has wrongly failed to apply the ‘de minimis’ rule to aid to undertakings which effect transport operations solely for their own account, the fourth plea is well-founded. The erroneous definition of the market would also result in the annulment of the decision in the case considered in the alternative of the ‘de minimis’ rule being inapplicable.

E - Fifth plea: Infringement of Article 87(3)(c) EC (compatibility of aid to facilitate certain economic activities)

1.    Arguments of the parties

(a)    Kingdom of Spain

119.

    The Spanish Government is of the opinion that, in examining an exemption from the prohibition on aid, the Commission wrongly based its decision solely on the Community guidelines on State aid for environmental protection. (48) However, guidelines such as these are simply pointers and do not restrict the power of the Commission to also give direct application to Article 87(3)(c) EC.

120.

    The Agreement led to vehicles being replaced earlier and therefore to a reduction in emissions and improved road safety, without increasing capacity in the transport sector. Since the subsidy should also be categorised as investment aid rather than operating aid, it should have been allowed under Article 87(3)(c) EC.

121.

    It is apparent from case-law and from the practice of the Commission that even operating aid is not always unlawful. However, the Commission did not consider whether this might be allowable operating aid. It also only assessed the measure from the aspect of environmental protection and not in relation to improved road safety.

(b) Commission

122.

    The Commission contends that it is bound by its own guidelines. Since the measure did not lead to the existing environmental standards being exceeded and was not confined to a subsidy for the additional costs of environmental protection, no exemption is possible under the Community guidelines on State aid for environmental protection. This also applies analogously with regard to the positive effects on road safety.

123.

    It argues that aid can only be considered permissible if its impact differs from that which would occur as a result of an undertaking's normal market activities. However, the recipients were relieved only of costs that they would have had to bear in any event when replacing an old vehicle. Since this therefore constitutes operating aid and there is no link between the aid and the added value to the environment, the measure could not be exempted from the prohibition on aid under Article 87(3)(c) EC.

(2) Analysis

124.

    According to Article 87(3)(c) EC, aid to facilitate the development of certain economic activities or of certain economic areas may be regarded as compatible with the common market, where such aid does not adversely affect trading conditions to an extent contrary to the common interest. Aid schemes may therefore pursue certain objectives that are in conformity with Community policy, such as enhanced protection of the environment and road safety, for example.

125.

    In the application of this derogation, the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context and are only subject to re-examination by the Court of Justice to a limited extent. (49) The reasoning following by the Commission must be consistent, in particular, (50) and must not contain any manifest error or misuse of powers. (51)

126.

    As explained above, the Commission may adopt a policy as to how it will exercise its discretion in the form of guidelines, provided that they are compatible with Community law. (52) It has taken advantage of this option by adopting the Community guidelines on State aid for environmental protection.

127.

    The Commission has classified the Agreement as a measure within the meaning of Article 87(3)(c) EC, but refused an exemption having regard to the Community guidelines on State aid for environmental protection. It should be considered whether its assessment of the Agreement is free from manifest discretionary errors.

128.

    The Commission should not be criticised for adhering to the Community guidelines when applying Article 87(3)(c) EC and not taking any further exemption into consideration. The very purpose of the guidelines is to lay down uniform criteria for the exercise of discretion that the Commission is bound to adopt. Only by doing so is it possible to ensure that all recipients of aid are treated equally and that the transparency and foreseeability of decisions is assured.

129.

    The Commission also correctly applied the criteria laid down in the Community guidelines in basing its decision on the fact that the subsidy is not linked to compensation for the additional costs caused by environmental protection nor conditional on exceeding mandatory environmental standards, as provided in paragraph 3.2.3, A and B of the Community guidelines. It should be borne in mind that the Community guidelines apply under a derogation from the prohibition on aid pursuant to Article 87(1) EC and should therefore be interpreted narrowly. (53)

130.

    The Agreement offers a financial incentive to replace vehicles at least ten years old with new vehicles. Even if vehicles of that age would in any case have had to be replaced in the foreseeable future, there is some likelihood that a number of undertakings at least have seen the subsidy as a reason to scrap a vehicle sooner. It is generally accepted, after all, that, given the developments in motor vehicle technology, the replacement vehicles are more advanced in terms of safety, fuel consumption and emissions of harmful substances than the vehicles which have been withdrawn after at least ten years of service. It can thus be said that the measure had certain favourable effects on the environment and road safety.

131.

    However, the fact that aid has such positive effects is not, in itself, sufficient to allow an exemption. Indeed, the principle of proportionality requires that the subsidy should not be higher than is necessary in order to achieve the environmental protection objectives. Only then is interference in competition and intra-Community trade justified. In the present case, however, the amount of the subsidy is guided only by the purchase price and is not linked to the additional costs of buying a new commercial vehicle caused by environmental factors or special costs due to exceeding existing environmental standards. The Commission was therefore right to refuse exemption.

132.

    It is not correct to say that the Commission only took account of the environmental-policy aspects and not the effects on road safety. Its statements in the contested decision do, in fact, expressly relate to both areas. Nevertheless, the contents of the Community guidelines on State aid for environmental protection are not relevant to the extent that the aid serves to improve road safety. However, it does not constitute a discretionary error to apply the same criteria in this respect as the criteria laid down in the Community guidelines, which ultimately give expression to the principle of proportionality.

133.

    The subsidies are to be classified as operating aid in accordance with case-law, as they facilitate replacement investment which is necessary in any event, (54) although the acquisitions may be brought forward because of the subsidies. The Court of Justice has ruled that operating aid cannot as a rule be exempted pursuant to Article 87(3)(c) EC. (55) Accordingly, the Commission rightly stated in the contested decision that the aid is contrary to the common interest.

134.

    Operating aid may also be authorised in certain exceptional cases, as can be seen from the Community guidelines on State aid for environmental protection. (56) Clearly, the aid granted under the Agreement is not comparable to cases in which, by way of exception, the Commission regards operating aid as permissible under the Community guidelines. Nor has the Spanish Government pleaded any other circumstances that would justify exemption being afforded to operating aid in the present case. Since the positive impact on the environment and road safety claimed by Spain does not even allow investment aid to be considered permissible in the present format, there can certainly be no question of authorising operating aid because of its particularly adverse effect on competition.

135.

    In contrast to the scheme that formed the subject of Decision 98/693, the Agreement excluded the possibility of vehicles withdrawn from the market being replaced by vehicles in a higher category. Although the aid might not lead to an expansion in overall capacity and only maintain the status quo, in a market beset with overcapacity this could still be contrary to Community interests, as the Commission rightly established, since it would further perpetuate the undesirable competitive situation.

136.

    As the Commission cannot therefore be accused of having committed a manifest discretionary error or abuse of powers in refusing exemption pursuant to Article 87(3)(c) EC, the fifth plea should be dismissed.

V - Costs

137.

    Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for. As the Commission has been unsuccessful and the Kingdom of Spain has made an application, the Commission should be ordered to pay the costs.

VI - Conclusion

138.

    As the fourth plea is well founded and delimitation of the markets for professional and non-professional transport is impossible for the Court of Justice to achieve, the contested decision should be annulled in its entirety.

139.

    It is therefore proposed that the Court should give judgment as follows:

(1)    Commission Decision 2001/605/EC of 26 July 2000 on the aid scheme implemented by Spain for the purchase of commercial vehicles via the Cooperation Agreement of 26 February 1997 between the Ministry of Industry and Energy and the Official Credit Institute is annulled.

(2)    The Commission shall bear the costs of the proceedings.

1: -     Original language: German.

2: -    OJ 2001 L 212, p. 34.

3: -    Commission Decision 98/693/EC of 1 July 1998 concerning the Spanish Plan Renove Industrial system of aid for the purchase of commercial vehicles (August 1994 - December 1996), OJ 1998 L 329, p. 23.

4: -    Opinion in Case C-351/98 [2002] ECR I-8031.

5: -    Case T-55/99 CETM v Commission [2000] ECR II-3207.

6: -    The communication was published in OJ 1999 C 29, p. 14.

7: -    The Spanish Government refers to the judgment in Case 70/72 Commission v Germany [1973] ECR 813, paragraphs 20 and 23.

8: -    The Spanish Government refers, in particular, to the judgment in Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, paragraph 25.

9: -    The Commission cites the judgments in Case 94/87 Commission v Germany [1989] ECR 175, paragraph 9, and Case C-348/93 Commission v Italy [1995] ECR I-673, paragraph 16.

10: -    The Commission cites the judgment in Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraphs 86 and 90 - Maribel.

11: -    The Commission refers to the judgment in Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraph 43.

12: -    Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 6, and Case 45/86 Commission v Council [1987] ECR 1493, paragraph 3.

13: -    Case C-242/00 Germany v Commission [2000] ECR I-5603, paragraph 46.

14: -    Judgment in Joined Cases C-287/95 P and C-288/95 P Commission v Solvay [2000] ECR I-2391, paragraph 49.

15: -    Judgment in Case C-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21.

16: -    See the judgment in Case C-404/97 Commission v Portugal, cited in footnote 11, paragraph 40.

17: -    The Spanish Government refers in this context to the Commission Notice on Monitoring of State Aid and Reduction of Labour Costs (OJ 1997 C 1, p. 10).

18: -    Maribel judgment (cited in footnote 10, paragraphs 28 and 30).

19: -    Uruguay Round of Multilateral Trade Negotiations (1986-94) - Annex 1 A, OJ 1994 L 336, p. 156.    

20: -    Opinion in Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993] ECR I-887, I-903, paragraphs 31 et seq. and 46.

21: -    The Spanish Government refers in this context to Commission Decision 96/369/EC of 13 March 1996 concerning fiscal aid given to German airlines in the form of a depreciation facility, OJ 1996 L 146, pp. 42 and 46.

22: -    See, for example, the judgments in Case C-143/99 Adria-Wien Pipeline [2001] ECR I-8365, on a scheme governed by the Austrian Energy Tax Law, Case C-156/98 Germany v Commission [2000] ECR I-6857, on a scheme governed by the German Income Tax Law, and the Maribel judgment (cited in footnote 10).

23: -    Cited in footnote 20, paragraphs 46 and 63 et seq.

24: -    Judgment in Adria-Wien Pipeline (cited in footnote 22, paragraph 35).

25: -    Judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 33/35.

26: -    See, for example, the judgment in Adria-Wien Pipeline (cited in footnote 22, paragraph 42 et seq.) and Maribel (cited in footnote 10, paragraph 34 et seq.).

27: -    See also the judgment in CETM (cited in footnote 5, paragraph 53).

28: -    The Spanish Government cites the Community guidelines on State aid for small and medium-sized enterprises of 20 May 1992 (OJ C 213, p. 2) as amended by the Commission notice on the ‘de minimis’ rule for State aid (OJ 1996 C 68, p.9), which has now been replaced by the SME Community guidelines of 1996 (OJ C 213, p. 4).

29: -    The Commission refers, in particular, to the CETM judgment of the Court of First Instance (cited in footnote 5, paragraphs 90, 92 and 93).

30: -    Judgments in Case C-169/95 Spain v Commission [1997] ECR I-135, paragraph 34, Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 26, and Case C-310/99 Italy v Commission [2002] ECR I-2289, paragraph 46.

31: -    In this respect, however, certain reservations persist where the detail is concerned. Although the subsidy per vehicle is small, the aid per applicant under the Agreement does not appear to be restricted to a specific number of vehicles. In theory it would therefore be possible for the aid to exceed the limit of ECU 100 000 in three years in certain cases. A further question is how far the Agreement precludes the accumulation of more than one type of aid, as the ‘de minimis’ communication requires.

32: -    OJ, English Special Edition, 1959-1962, p. 237.

33: -    OJ 1992 L 95, p. 1.

34: -    The definition cited reads as follows:

    ‘4. Carriage of goods in motor vehicles [is exempt from any Community authorisation and from any carriage authorisation] provided that the following conditions are fulfilled:

    (a)    the goods carried must be the property of the undertaking or must have been sold, bought, let out on hire or hired, produced, extracted, processed or repaired by the undertaking;

    (b)    the purpose of the journey must be to carry the goods to or from the undertaking or to move them, either inside the undertaking or outside for its own requirements;

    (c)    motor vehicles used for such carriage must be driven by employees of the undertaking;

    (d)    the vehicles carrying the goods must be owned by the undertaking or have been bought by it on deferred terms or hired ...;

    (e)    carriage must be no more than ancillary to the overall activities of the undertaking.’

35: -    See the references in footnote 28.

36: -    Advocate General Léger points out that there appears to be some inconsistency between the ‘de minimis’ communication and the Court's ruling that even the smallest amount of aid may affect intra-Community trade (see paragraphs 115 and 116 below) (Opinion in Case C-382/99 Netherlands v Commission [2002] ECR I-5163, paragraph 45).

37: -    Judgment in Case C-310/99 Italy v Commission (cited in footnote 30, paragraph 52); see also the judgment in Case C-288/96 Germany v Commission (cited in footnote 30, paragraph 62).

38: -    Judgment in Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraphs 34 and 36; see also the judgment in Case C-311/94 Ijssel-Vliet [1996] ECR I-5023, paragraph 42.

39: -    See the Report of the Hearing in Case C-313/90 [1993] ECR I-1127 f.

40: -    See the Opinion of Advocate General Léger in Case C-382/99 Netherlands v Commission (cited in footnote 36, paragraph 50).

41: -    See the judgment in Case C-310/99 Italy v Commission (cited in footnote 30, paragraph 52).

42: -    See the settled case-law of the Court of Justice on Article 82 EC: judgment in Case C-7/97 Bronner [1998] ECR I-7791, paragraph 33, with further references).

43: -    See point 4 of Annex II to the First Council Directive of 23 July 1962 on the establishment of certain common rules for international transport (carrying of goods by road for hire or reward) (OJ 1962 L 70, p. 2005) as amended by Council Regulation (EEC) No 881/92 of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States (OJ 1992 L 95, p. 1).

44: -    See the judgment in Case C-288/96 Germany v Commission (cited in footnote 30, paragraphs 89 and 90) and the judgment of the Court of First Instance in Case T-459/93 Siemens v Commission [1995] ECR II-1675, paragraph 48, confirmed by the judgment of the Court of Justice in Case C-278/95 P Siemens v Commission [1997] ECR I-2507, paragraph 20 et seq.

45: -    See the judgments in Case C-730/79 Philip Morris Holland v Commission [1980] ECR 2671, paragraph 11, and Case C-156/98 Germany v Commission (cited in footnote 22, paragraph 33).

46: -    Germany v Commission (cited in footnote 22, paragraphs 38 and 39, with further references. See also the judgment in Case C-310/99 Italy v Commission (cited in footnote 30, paragraph 86).

47: -    Judgments of the Court of Justice in Case 259/85 France v Commission [1987] ECR 4393, paragraph 24, and Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 27.

48: -    OJ 1994 C 72, p. 3.

49: -    Judgment in Maribel (cited in footnote 10, paragraph 55) and judgment in Case C-303/88 Italy v Commission (cited in footnote 47, paragraph 34).

50: -    See the judgment in Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 51.

51: -    Judgments in Case C-310/99 Italy v Commission (cited in footnote 30, paragraph 46), Case C-169/95 Spain v Commission [1997] ECR I-135, paragraph 34, and Case C-288/96 Germany v Commission (cited in footnote 30, paragraph 26).

52: -    See paragraph 81 above.

53: -    Thus, with regard to derogations pursuant to Article 87(2)(c) EC: judgment in Case C-156/98 Germany v Commission (cited in footnote 22, paragraph 49).

54: -    See the case-law cited in footnote 44.

55: -    Judgments of the Court of Justice in Case C-86/89 Italy v Commission [1990] ECR I-3891, paragraph 18, Case C-301/87 France v Commission [1990] ECR I-307, paragraph 50, and, in particular, Case C-288/96 Germany v Commission (cited in footnote 30, paragraphs 89 and 90).

56: -    There is some doubt whether the Community guidelines are compatible in this respect with Article 92(3)(c) EC [sic] and its interpretation by the Court of Justice with respect to operating aid. This issue does not need to be considered further here, however, since the requirements for exemption as operating aid are not in any case satisfied.