Since 1974 charges on the loading and unloading of goods carried by sea or by air have been levied - in all Italian ports - and paid into the national exchequer. The amount of the charge (which varies between EUR 0.01 and EUR 0.05 per metric tonne, depending on what the goods are) is set for each port by decree of the President of the Republic. Two thirds of the revenue from the charges are allocated to the Aziende (for the performance of their duties), the remainder being kept by the State.

Using its own resources, Enirisorse has loaded and unloaded domestic and foreign goods in the port of Cagliari without making use of the services provided by the Azienda operating in that port. Taking the view that the charges (payable even if the undertaking does not use the Azienda’s services) distort competition and amount to State aid in favour of the Aziende, Enirisorse has refused to pay them.

The Corte di Cassazione has therefore referred the matter to the Court of Justice for a preliminary ruling.

The Court observes that if the payment at issue is to be classified as State aid, it must come from State resources, be liable to affect trade between Member States, favour an undertaking, whether directly or indirectly, and distort or threaten to distort competition.

The proportion of the charges allocated to the Aziende comes out of the State budget.

This allocation could influence intra-Community trade as the recipient is an undertaking established in a port loading and unloading goods.

In order for the State funding not to be regarded as an advantage, it must constitute compensation for the performance of clearly defined public-service duties (and not a financial advantage), and the parameters for calculating that compensation must be set beforehand objectively and transparently.

First, the Court notes that operating a commercial port does not necessarily involve the performance of public-service duties.

Insofar as the Aziende have not shown that they are responsible for public-service duties or that the sum allocated to them constitutes compensation for the cost of performing such duties, allocation of that sum may constitute State aid.

Next, the Court declares that the Treaty forbids the implementation of any aid which has not been notified: the national court must take all measures necessary to prevent both the levying of a proportion of the charges and its allocation to the recipients.

It is to be remarked that even if the port charges are unlawful, that concerns only the proportion paid to the recipient undertaking (the remainder of the charges paid into the exchequer is not affected).

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