Report 2011 - EFTA Court

other hand, it is not necessary to communicate alterations of a
merely formal or administrative nature. 55
71. Turning to its decision practice, the Commission explains that
in general, in line the Opinion of Advocate General Trabucchi
in Hulst, 56 it takes into account the nature of the benefit, the
objective pursued by the measure and the beneficiary institutions
or undertakings, the legal basis and the source of financing. 57
72. in the transport sector, the Commission has dealt with the
issue of possible substantial alterations to existing aid in three
decisions. 58 The Commission notes that the common feature in
these cases is that the State aid was based on certain principles
for calculating compensation payments, which were laid down
in generally applicable rules. These rules were applicable for an
undetermined duration; the actual aid amount was calculated
and approved annually on the principles laid down in those
rules. These competent authorities enjoyed no discretion but
were simply applying predetermined rules. The Commission
found that only substantial changes to the rules for calculating
the compensation constituted substantial alterations of the aid
schemes, but not the application of those rules.
73. Turning to the first part of the first plea, that the renewal of the
concession is a substantive alteration of the aid, the Commission
55 Reference is made to Opinion of Advocate General Mancini in Joined Cases 91 and 127/83
Heineken [1984] ECR 3456, point 5; and Article 4 of Commission Regulation (EC) No
794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying
down detailed rules for the application of Article 93 of the EC Treaty (referred to at point
2 of Protocol 26 to the EEA Agreement).
56 Reference is made to Opinion of Advocate General Trabucchi in Case 51/74 Hulst [1975]
ECR 99, point 7.
57 Reference is made to Commission Decision of 28 October 2009 in Case E 2/2008 –
Financing of ORF, point 124; Commission Decision of 24 April 2007 in Case E 3/2005
– Financing of public service broadcasters in Germany, point 197; Commission Decision of
20 April 2005 in Case E 10/2005 – Redevance radiodiffusion, points 31-33; Commission
Decision of 20 April 2005 in Case E 8/2005 – State aid in favour of the public Spanish
broadcaster RTVE, after point 47.
58 Commission Decision of 20 December 2006 in Case C-58/2006 – Verkehrsverbund Rhein-
Ruhr; Commission Decision of 10 October 2007 in Case C-42/2007 – Reform of the pension
system of RATP; and Commission Decision of 28 January 2009 in Case E 4/2007 – French
airport charges, points 57-60.
CASE E-14/10 Konkurrenten.no AS v xxxxxxxxxxxxxxxxxxxxxxxxxxx EFTA Surveillance Authority
324