«(Regulation (EEC) No 1191/69 – Operation of urban, suburban and regional scheduled transport services – Public subsidies – Concept of State aid – Compensation for discharging public service obligations)»

1.. Transport – Action by the Member States concerning public service obligations – Regulation No 1191/69 – Derogation authorised for undertakings operating urban, suburban or regional scheduled transport services – Extent of the option available to Member States – Obligation to delimit clearly the use made of that option – Observance of legal certainty (Council Regulation No 1191/69, Art. 1(1), second subpara.)

2.. State aid – Effect on trade between Member States – Adverse effect on competition – Exclusion by the Commission of the transport sector from the de minimis rule (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC); Commission Regulation No 69/2001; Commission Notice 96/C 68/06)

3.. State aid – Definition – Measures intended to offset the cost of public service tasks assumed by an undertaking – Not included – Conditions – Clearly defined public service obligations – Establishment in an objective and transparent manner of the parameters used to calculate the compensation – Compensation limited to covering costs – Determination of the compensation, where the undertaking is not chosen by a public procurement procedure, on the basis of an analysis of the costs of a typical undertaking in the sector concerned (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC))

4.. Transport – Aid for transport – Application of Article 77 of the Treaty (now Article 73 EC) – Limitation to cases covered by secondary Community legislation (EC Treaty, Art. 77 (now Art. 73 EC); Council Regulations Nos 1191/69 and 1107/70)

JUDGMENT OF THE COURT 24 July 2003 (1)

((Regulation (EEC) No 1191/69 – Operation of urban, suburban and regional scheduled transport services – Public subsidies – Concept of State aid – Compensation for discharging public service obligations))

In Case C-280/00,

REFERENCE to the Court under Article 234 EC by the Bundesverwaltungsgericht (Germany) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC), Article 77 of the EC Treaty (now Article 73 EC), and Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ, English Special Edition 1969 (I), p. 276), as amended by Council Regulation (EEC) No 1893/91 of 20 June 1991 (OJ 1991 L 169, p. 1),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Rapporteur) (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,

Advocate General: P. Léger,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Altmark Trans GmbH, represented by M. Ronellenfitsch; Regierungspräsidium Magdeburg, represented by L.-H. Rode; Nahverkehrsgesellschaft Altmark GmbH, represented by C. Heinze; and the Commission, represented by M. Wolfcarius and D. Triantafyllou, at the hearing on 6 November 2001,

after hearing the Opinion of the Advocate General at the sitting on 19 March 2002,having regard to the order reopening the oral procedure of 18 June 2002,after hearing the oral observations of Altmark Trans GmbH, represented by M. Ronellenfitsch; Regierungspräsidium Magdeburg, represented by S. Karnop, acting as Agent; Nahverkehrsgesellschaft Altmark GmbH, represented by C. Heinze; the German Government, represented by M. Lumma, acting as Agent; the Danish Government, represented by J. Molde, acting as Agent; the Spanish Government, represented by R. Silva de Lapuerta, acting as Agent; the French Government, represented by F. Million, acting as Agent; the Netherlands Government, represented by N.A.J. Bel, acting as Agent; the United Kingdom Government, represented by J.E. Collins, acting as Agent, and E. Sharpston QC; and the Commission, represented by D. Triantafyllou, at the hearing on 15 October 2002,after hearing the Opinion of the Advocate General at the sitting on 14 January 2003,

gives the following

Community law

Member States may exclude from the scope of this Regulation any undertakings whose activities are confined exclusively to the operation of urban, suburban or regional services.

...

National legislation

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the question referred to it by the Bundesverwaltungsgericht by order of 6 April 2000, hereby rules:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 24 July 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President