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… JUDGMENT OF THE COURT (Third Chamber) 8 September 2011 (*) (Appeal - State aid - Article 87(1) EC - Emission trading scheme for nitrogen oxides - Classification of the national measure as State aid - Decision declaring aid to be compatible with the common market - Concept of - financed through State resources - of the - Obligation to state the reasons for decision - Admissibility) In Case C-279/08 P, APPEAL under Article 56 of the Statute of the Court …

… That Member State considers that the objective of the scheme in question is to the and takes into account the specific characteristics of the major polluters in order to attain it. …

… In addition, for the reasons set out in paragraphs 59 to 79 above, the Court upheld the second ground of appeal put forward by the Commission which was intended to call into question the General Court’s analysis in relation to the character of the mentioned above. …

… However, such proof can be of no relevance in assessing the possibly nature of the of being able to trade emission allowances. 48. In this respect too, it therefore follows that the Court of First Instance misinterpreted the extent of the burden of proof on the Commission. 49. …

… If that scheme grants an advantage to the undertakings which participate therein, in spite of the burdens which it entails, that is in nature since it favours only a limited number, albeit substantial and determined on the basis of objective criteria, of undertakings which emit NOx in the Netherlands. 45. A large number of previous cases confirm the forgoing analysis. (27) 46. …

… The Commission further contends that the application of the limit, laid down by Community law, on overlapping State aid to the , and mentioned at paragraph 41 of the judgment under appeal, is a merely hypothetical consequence of the decision. I agree with that analysis. That limit is intended to produce effects only if the Netherlands decides to grant further aid to the undertakings concerned by the measure in question. …

… The selective nature of the tax legislation at issue in the main proceedings 59 According to the Region of Sardinia, the difference in treatment as between resident undertakings and non-resident undertakings does not constitute a . …

… of the and countryside of Sardinia. …

… The regional tax on stopovers, imposed only on persons who have their tax domicile outside the territory of the region, is said to be justified by the fact that residents of the region pay other taxes which contribute to operations for the of the Sardinian . 47 In that regard, it should be borne in mind that the Court has acknowledged that the need to preserve the cohesion of a tax system may justify a restriction on the fundamental freedoms guaranteed by the Treaty, but has …

… Consequently tax rules such as those adopted by Sardinia satisfy the condition of a - - for the purposes of Article 87(1) EC. 140. …

… of the - of health - Cohesion of the tax system - Island regions) I - Introduction 1. …

… In short, therefore, restrictions on the freedom to provide services, such as those brought about by the Sardinian tax rules, cannot be justified on grounds of the of the . b) The of health 91. In addition to the of the , the Autonomous Region of Sardinia relies on the protection of health as a ground justifying the contested tax rules. 92. …

… The Court of First Instance upheld the Commission’s conclusion that there was no , on the following grounds. 29. …

… The temporal (second branch of the fourth ground of appeal) 139. In paragraphs 113 to 122 of the judgment under appeal, the Court of First Instance examined whether the earlier award of licences to Orange and SFR had given those undertakings a temporal over Bouygues Télécom. …

… . …

… It is also a in so far as the exemptions apply solely to undertakings which operate in the natural gas sector. 42. …

… In point of fact, the tax exemptions at issue are both financed from public funds and apt to confer a economic on the recipient undertakings (in that connection, the applicant explains that only two undertakings are able to benefit from the exemptions at issue: SA Fluxys from the provincial tax and SA Distrigaz from the municipal tax). …

… For my part, I must first point out that according to the Court’s settled case-law, in order to assess whether a measure of a public body constitutes State aid, it is necessary to ascertain whether four conditions are cumulatively met: (i) the measure must confer a on certain undertakings or the production of certain goods; (ii) the advantage must be accorded directly or indirectly from State resources; (iii) the measure must distort or threaten to distort competition, and (iv …

… It is not disputed that the FISAC finances local town planning and regional development projects which fall outside the scope of Article 87(1) EC because they do not confer on certain undertakings or sectors of activity. 113. …

… On that issue Advocate General Tizzano stated in his Opinion in Ferring (22) that ‘it can neither be accepted nor excluded a priori that failure to levy a tax on certain parties is tantamount to conferring a within the meaning of Article [87 EC]. …

… It should be ascertained whether, in the light of the specific characteristics of the disputed national rules, the difference in taxable treatment under the legislation at issue in fact entails a use of resources and, correlatively, whether there is a , that is to say, whether the legislation places specific undertakings at an advantage. 46. …

… In paragraph 42 of the Evans Medical and Macfarlan Smith judgment, cited above, the Court stated that ‘in the most economically tender, contracting authorities may choose the criteria which they intend to apply, but their choice may relate only to criteria designed to identify the most economically advantageous tender’. 80. …

… Even if the aims relating to the of the pursued by the contracting authority by including that criterion are not achieved, it does not follow that an environmental criterion in an invitation to tender would be unlawful. 4. The connection between the award criterion and the subject-matter of the contract 53. …

… There is no doubt that the supply of green electricity can be described as such a criterion, which is confirmed by the judgment in Case C-379/98 PreussenElektra, (9) according to which ‘the use of renewable energy sources for producing electricity … is useful for the in so far as it contributes to the reduction in emissions of greenhouse gases which are amongst the main causes of climate change which the European Community and its Member States have pledged to combat’. (10) …

… It notes that the Court has ruled in Case 31/87 Gebroeders Beentjes [1988] ECR 4635 and Case C-324/93 Evans Medical and Macfarlan Smith [1995] ECR I-563 that in the most economically tender the contracting authorities are free to choose the criteria to be used in awarding the contract. Their choice may relate only, however, to criteria designed to identify the most economically advantageous tender. 34. …

… The principle of equal treatment does not preclude the taking into consideration of criteria connected with of the , such as those at issue in the main proceedings, solely because the contracting entity's own transport undertaking is one of the few undertakings able to offer a bus fleet satisfying those criteria. 3. …

… For the city of Helsinki itself, which is responsible for of the within its territory, direct economies follow from this, especially in the medico-social sector, which represents about 50% of its overall budget. Factors which contribute even on a modest scale to improving the overall state of health of the population enable it to reduce its charges rapidly and to a considerable extent. 47. …