República Italiana contra Comisión de las Comunidades Europeas.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Schockweiler
• ECLI: ECLI:EU:C:1991:142
• Docket Number: C-305/89
• Date: 21 March 1991
• Procedure Type: Recurso de anulación - infundado

Avis juridique important

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61989J0305

Judgment of the Court of 21 March 1991. - Italian Republic v Commission of the European Communities. - State aid - Capital contributions - Motor vehicle sector. - Case C-305/89.

European Court reports 1991 Page I-01603

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1. Aid granted by States - Concept - Aid granted through the intermediary of a state-controlled body - Inclusion (EEC Treaty, Art. 92(1))

2. Aid granted by States - Concept - Financial assistance granted to an undertaking by a Member State - Assessment criterion - Reasonable nature of the operation for a private investor pursuing a medium or long-term policy (EEC Treaty, Art. 92(1))

3. Aid granted by States - Effect on trade between Member States - Impairment of competition - Aid granted to an undertaking operating in a sector where there is surplus production capacity and effective competition (EEC Treaty, Art. 92(1))

4. Aid granted by States - Recovery of unlawful aid - Obligation flowing from the unlawful nature of the aid (EEC Treaty, Art. 93(2))

Summary

1. In order to determine whether aid may be regarded as State aid within the meaning of Article 92(1) of the Treaty, no distinction should be drawn between cases where aid is granted directly by the State and cases where it is granted by public or private bodies established or appointed by the State to administer the aid.

2. In order to determine whether intervention by the public authorities in the capital of an undertaking, in whatever form, may constitute State aid within the meaning of Article 92 of the Treaty, it is necessary to consider whether in similar circumstances a private investor of a size comparable to that of the bodies administering the public sector might have provided capital of such an amount.

Although the conduct of a private investor with which the intervention of the public investor pursuing economic policy aims must be compared need not be the conduct of an ordinary investor laying out capital with a view to realizing a profit in the relatively short term, it must at least be the conduct of a private holding company or a private group of undertakings pursuing a structural policy - whether general or sectoral - and guided by prospects of profitability in the longer term.

3. Where an undertaking operates in a sector in which there is surplus production capacity and producers from various Member States compete, any aid which it may receive from the public authorities is liable to affect trade between the Member States and impair competition, inasmuch as its continuing presence on the market prevents competitors from other Member States from increasing their market share and reduces their chances of increasing their exports to that Member State.

4. The obligation to recover State aid declared unlawful is the logical consequence of a finding by the Commission that it is unlawful.

Parties

In Case C-305/89,

Italian Republic, represented by Luigi Ferrari Bravo, head of the Legal Department of the Ministry for Foreign Affairs, acting as Agent, assisted by Ivo Braguglia, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

applicant,

v

Commission of the European Communities, represented by Antonino Abate, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 89/661/EEC of 31 May 1989 concerning aid provided by the Italian Government to Alfa Romeo, an undertaking in the motor vehicle sector (Official Journal 1989 L 394, p. 9),

THE COURT,

composed of: O. Due, President, G.F. Mancini, T.F. O' Higgins, G.C. Moitinho de Almeida and G.C. Rodríguez Iglesias (Presidents of Chambers), Sir Gordon Slynn, C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse and M. Zuleeg, Judges,

Advocate General: W. Van Gerven.

Registrar: J.A. Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of the parties at the hearing on 20 November 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 10 January 1991,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 5 October 1989, the Italian Republic brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Commission Decision 89/661/EEC of 31 May 1989 concerning aid provided by the Italian Government to Alfa Romeo, an undertaking in the motor vehicle sector (Official Journal 1989 L 394, p. 9).

2 According to Article 1 of that decision,

"The aid in the form of capital contributions totalling Lit 615,1 billion awarded by the Italian Government through public holding companies IRI and Finmeccanica to Alfa Romeo is unlawful and therefore incompatible with the common market within the meaning of Article 92(1) of the EEC Treaty because it was provided in contravention of the rules of procedure laid down in Article 93(3). The aid is also incompatible because it does not satisfy the conditions for exemption provided for in Article 92(3)."

3 Under the first paragraph of Article 2 of the Decision,

"The Italian Government is hereby required to recover the aid referred to in...