Judgment — ECLI:EU:T:2002:19
Date: 2002-01-30
Language of the case: Italian
Court formation: Second Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Amount of aid to be recovered;Damage to competition and effect on trade;Commission discretion
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. State aid — Prohibition — Derogations — Commission's discretion — Possibility 
of adopting guidelines — Judicial review — Limits 
(EC Treaty, Art. 92(3) (now, after amendment, Art. 87(3) EC» 
II - 261 
SUMMARY — CASE T-35/99 
2. State aid — Adverse effect on competition — Aid for restructuring an undertaking in 
difficulty — Restructuring plan which does not ensure restoration of the undertaking's 
viability 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. State aid — Recovery of illegally granted aid — Date from which interest is 
payable — Fixed by the Commission as the date of payment of the aid 
(EC Treaty, Art. 93(2) (now Art. 88(2) EC)) 
1. Article 92(3) of the Treaty (now, after 
amendement, Article 87(3) EC) confers 
on the Commission a wide margin of 
discretion to allow aid by way of 
derogation from the general prohib­
ition laid down in paragraph (1) of that 
article, inasmuch as the determination 
in such cases of whether State aid is 
compatible with the common market 
raises problems which make it necess­
ary to examine and appraise complex 
economic facts and conditions. The 
judicial review carried out by the 
Community judicature must therefore 
be limited to checking that the rules on 
procedure and the statement of reasons 
have been complied with, that the facts 
are materially accurate, and that there 
has been no manifest error of assess­
ment and no misuse of powers. It is not 
for the Community judicature, there­
fore, to substitute its economic assess­
ment for that of the Commission. 
The Commission may provide itself 
with guidance for the exercise of its 
powers of assessment by adopting acts 
such as the guidelines on State aid for 
the rescue or restructuring of under­
takings in difficulty inasmuch as those 
acts contain indications as to the direc­
tion to be followed by that institution 
and do not depart from the Treaty 
rules. In that context it is for the 
Community judicature to verify 
whether the requirements which the 
Commission has itself laid down have 
been observed. 
(see para. 77) 
2. The Commission is not required to 
demonstrate the real effect of illegal aid 
on competition and trade between 
Member States. Article 92(1) of the 
Treaty (now, after amendment, 
Article 87(1) EC) declares not only 
aid which 'distorts' competition to be 
incompatible with the common market 
but also aid which 'threatens' to do so. 
II - 262 
KULLER AND KELLER MECCANICA v COMMISSION 
The finding that the recovery plan for an undertaking in difficulty which has 
received State aid does not ensure to 
the requisite legal standard that the 
undertaking concerned will be returned 
to viability is sufficient in itself to 
substantiate the existence of at the very 
least potential distortions of compe­
tition brought about by the aid at issue. 
(see paras 85-86) 
3. In the event of recovery of State aid, the 
interest on the sums to be reimbursed 
can run only from the date as from 
which recipients of the aid were 
actually able to avail themselves of 
the capital amounts in question. Thai-
rule must be interpreted as meaning 
that interest begins to run with effect-
not from the date of actual utilisation 
of the aid but from the date of the grant 
of that aid. 
(see paras 107-108) 
II - 263