Altmark (ECJ)
Court of Justice of the European Communities
Case C-280/00, known as Altmark
Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)
Judgment of 24 July 2003 available online (HTML)
Order of the court (without reasons) (PDF, 2 pages, from the OJ)
State aid; public services; interpretation of Article 87(1)
Article numbers refer to the 1997 consolidated version of the EC Treaty.
On a reference for a preliminary ruling from a German court in a dispute relating to Altmark, a bus operator, the ECJ identified the following conditions for a payment made out of State funds to a company operating a service of general economic interest (public service) not to be a State aid:
- There must be actual and clearly defined public service obligations.
- The basis of payments must have been established in advance and be objective and transparent.
- Payments must not exceed the net total costs (including return on capital etc.) caused by the public service obligations.
- Payments must have been set either by competitive tender or on the basis of a cost analysis for a hypothetical well-run operator.
If any of these conditions is not met then the payment or other benefit granted out of State resources is a State aid for the purposes of Article 87(1) and, subject to the other provisions of Article 87, is prohibited unless it is permitted by Article 87(2) or a specific regulation; justified under Article 86; or cleared under Article 87(3).
The Ferring (State aid) case was decided whilst Altmark was being argued. In Ferring, the court found that the Article 87(1) and Article 86(2) tests were identical in a case of a tax exemption measure intended to provide compensation for a public service obligation imposed on a class of pharmaceuticals wholesalers. Altmark confirmed that this equivalence did not extend to all cases of funding for public services.
In particular, Altmark recognises that funding provided through a public service concession contract might be justified under Article 86(2) even if the four criteria above were not met, which is to say even if the funding agency had not acted like a "market purchaser" in establishing the concession contract.
Related articles on Reckon Open
- Article 87
Outline of the legal provisions and links to other related articles and cases.
- Chronopost
Case about the definition of State aid in the context of payments from a (State-owned) public service operator to its commercial arm.
- Ferring (State aid)
Case about the definition of State aid in the context of a tax exemption provided to a class of undertakings as compensation for a public service obligation.
- Public services and competition law | viewpoint: Franck
This article reviews the ways in which EC competition law, including State aid law, applies to public services. It provides a further discussion of the way in which Altmark may be seen to introduce the idea of a "market purchaser" in deciding whether funding is State aid.
- Andreas Bartosch lecture 5 May 2005 | viewpoint: Franck
Notes from a lecture entitled "The treatment of SGEI post Altmark".
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Last changed by Franck at 9:51 PM on Monday 14 November 2005.