«(Public undertakings – Transfer to public undertakings of a proportion of port charges paid to the State – Competition – Abuse of a dominant position – State aid – Charge having equivalent effect – Internal taxation – Free movement of goods)»

1.. State aid – Definition – Measures intended to compensate for the cost of public-service duties carried out by an undertaking – Excluded – Conditions – Clearly defined public-service obligations – Establishment in an objective and transparent manner of the parameters for calculating the compensation – Compensation limited to cost – Unlawfulness of the measure allocating part of the charge to a public undertaking – Unlawfulness affecting only that part of the charge paid to the undertaking (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC))

2.. State aid – Planned aid – Prohibition of implementation before the Commission's final decision – Direct effect – Extent – Unnotified measure allocating to an undertaking part of a charge – Responsibility of the national courts to prevent the levying of the charge and the allocation of the revenue therefrom (EC Treaty, Art. 93(3) (now Art. 88(3) EC))

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

4.. Tax provisions – Internal taxation – Port charges allocated to a public undertaking regardless of the service rendered by the latter – No discrimination against imported goods – Permissible (EC Treaty, Arts 12, 30 and 95 (now, after amendment, Arts 25, 28 and 90 EC))

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

((Public undertakings – Transfer to public undertakings of a proportion of port charges paid to the State – Competition – Abuse of a dominant position – State aid – Charge having equivalent effect – Internal taxation – Free movement of goods))

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

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

and

on the interpretation of Article 12 of the EC Treaty (now, after amendment, Article 25 EC), Article 13 of the EC Treaty (repealed by the Treaty of Amsterdam), Article 30 of the EC Treaty (now, after amendment, Article 28 EC), Articles 86 and 90 of the EC Treaty (now Articles 82 EC and 86 EC), Article 92 of the EC Treaty (now, after amendment, Article 87 EC), Article 93 of the EC Treaty (now Article 88 EC) and Article 95 of the EC Treaty (now, after amendment, Article 90 EC),

THE COURT (Fifth Chamber),,

composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, D.A.O. Edward and S. von Bahr (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

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

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

gives the following

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Corte Suprema di Cassazione by orders of 12 July 2000, hereby rules:

Not only the allocation of a proportion of the charges to a public undertaking, but also the collection from users of the proportion corresponding to the amount so allocated, may constitute State aid incompatible with the common market. If the aid has not been notified, it is for the national court to take all measures necessary, under its national law, to prevent both the allocation of a proportion of the charges to the recipient undertakings and the collection of that proportion of the charges; The fact that the collection and allocation of a proportion of the charges may be unlawful concerns only that proportion of the charges paid to the public undertaking in question and does not affect the charges as a whole.

Jann

Timmermans

Rosas

Edward

von Bahr

Delivered in open court in Luxembourg on 27 November 2003.

R. Grass

V. Skouris

Registrar

President