Judgment — ECLI:EU:T:1999:66
Date: 1999-03-25
Language of the case: French
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition
Concepts: Intervention;Acts of the institutions;Limitation periods;Investments and financial aid;Legal certainty
Procedure: Action for annulment - unfounded
Origin: Belgium

Summary of the Judgment 
1. Actions for annulment — Time-limits — Point from which time starts to run 
(ECSC Treaty, Art. 33, third para.) 
2. ECSC — Steel aid — Concept — Capital contributions — Waivers of debts — Loan 
guarantees — Bridging loans — Covered 
(ECSC Treaty, Art. 4(c)) 
3. ECSC — Steel aid — Concept — Aid granted through a State-controlled body which is 
a shareholder of the recipient undertaking — Covered 
(ECSC Treaty, Arts 4(c) and 83) 
4. ECSC — Steel aid — Concept — Assessment on the basis of the private investor 
criterion 
(ECSC Treaty, Art. 4(c); EC Treaty, Art. 92) 
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SUMMARY — CASE T-37/97 
5. ECSC — Steel aid — Prohibited — Commission authorisation possible — Conditions 
(ECSC Treaty, Arts 4(c) and 95; Commission Decision No 3855/91/ECSC) 
6. Procedure — Intervention — Application in support of the form of order sought by 
one of the parties but relying on a different argument — Whether admissible — 
Freedom to choose the pleas in law relied on — Scope of that freedom 
(Rules of Procedure of the Court of First Instance, Art. 116(3) and (4)) 
7. Community law — Principles — Legal certainty — Concept — Circumstances in 
which breach of that principle may be pleaded — Conditions 
8. Acts of the institutions — Statement of reasons — Obligation — Scope — ECSC 
decision 
(ECSC Treaty, Art. 15, first para.) 
9. ECSC — Steel aid — Prohibited — Commission authorisation possible — Condi­
tions — Economic viability of the recipient undertaking — Maintenance of competi­
tion 
(ECSC Treaty, Art. 2) 
1. Under the third paragraph of Arti­
cle 33 of the ECSC Treaty, actions for 
annulment must be instituted within 
one month of the notification or pub­
lication, as the case may be, of the 
decision or recommendation. In accor­
dance with the principle of legal cer­
tainty, individuals must be in a position 
to rely on the clear wording of that 
provision. Accordingly, the time-limits 
for bringing actions must be calculated 
on the basis of the dates on which 
decisions and recommendations of the 
Commission are notified and pub­
lished. 
2. Aid for the purposes of Article 4(c) of 
the ECSC Treaty includes any payment 
in cash or in kind made in support of 
an undertaking, other than the pay­
ment by the purchaser or consumer for 
the goods or services which the under­
taking produces, and also any inter­
vention which alleviates the normal 
burdens on an undertaking's budget. 
Aid for those purposes thus encom­
passes capital contributions, advances 
made on such contributions, waivers of 
loan debts, State guarantees for loans, 
and bridging loans. 
3. In determining whether aid constitutes 
State aid, no distinction should be 
drawn between aid granted directly 
by the State or a local authority and 
aid granted by public or private bodies 
established or appointed by the State or 
the local authority to administer the 
aid. Neither the fact that such a body 
was shareholder of the company at the 
time when it put into operation inter­
vention measures in its favour, nor 
Article 83 of the ECSC Treaty can 
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FORGES DE CLABECQ V COMMISSION 
preclude such intervention from being 
classed as State aid. Indeed the fact that 
Article 83 provides that 'the establish­
ment of the Community shall in no 
way prejudice the system of ownership 
of... undertakings' does not preclude 
Article 4 of the ECSC Treaty from 
being relied on as against State autho­
rities which, as shareholders of under­
takings, adopt measures which are not 
contributions of risk capital in accor­
dance with the normal practice of 
companies in a market economy. 
4. When assessing the compatibility with 
the common market of measures 
adopted by the public authorities in 
favour of an undertaking, the relevant 
criterion is whether the undertaking 
could have obtained the amounts in 
question on the capital market, that is 
to say, whether a private investor 
would have effected the transaction in 
question on the same terms and condi­
tions. To challenge the relevance of that 
criterion in the steel sector on the 
ground that in practice that sector 
inevitably requires injections of public 
funds is tantamount to refuting the 
applicability in principle of the prohi­
bition laid down in Article 4(c) of the 
ECSC Treaty, which specifically con­
cerns subsidies or aid granted by States. 
The private investor criterion is as 
relevant under Article 4 of the ECSC 
Treaty as it is under Article 92 of the 
EC Treaty, inasmuch as it serves to 
identify advantages which distort or 
threaten to distort competition. 
5. Article 4(c) of the ECSC Treaty does 
not prohibit the Commission from 
authorising, by way of derogation, 
State aid which does not come within 
the categories mentioned in the Steel 
Aid Code, on the basis of the first and 
second paragraphs of Article 95 of the 
Treaty. None the less, that is not an 
obligation for the Commission but 
merely a discretionary power which it 
exercises when it is of the opinion that 
the aid notified is necessary in order to 
achieve the aims of the Treaty, and 
particularly in order to deal with 
unforeseen situations. It follows that 
the Commission, which must act in the 
interests of the Community, may use 
that power only in exceptional cases. 
6. As indicated by Article 116(4) of the 
Rules of Procedure of the Court of First 
Instance, an intervener may not go 
beyond the form of order sought by 
the party in support of whom it is 
intervening, but it may freely choose its 
pleas and arguments in support of that 
form of order. Nor, moreover, is that 
freedom of choice limited to the argu­
ments relied on at the stage of the 
administrative procedure. Of course, a 
Member State intervening in an action 
for annulment of a Commission deci­
sion cannot rely on matters of fact not 
known to the Commission and which it 
would not have wished to divulge to 
the Commission during the adminis­
trative procedure, but there is nothing 
to prevent it from raising against the 
final decision a plea in law not raised in 
the administrative procedure. 
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SUMMARY — CASE T-37/97 
7. The principle of legal certainty aims to 
ensure that situations and legal rela­
tionships governed by Community law 
remain foreseeable. To that end, it is 
essential that the Community institu­
tions observe the principle that they 
may not alter measures which they 
have adopted and which affect the legal 
and factual situation of persons, so that 
they may amend those acts only in 
accordance with the rules on compe­
tence and procedure. However, breach 
of that principle cannot effectively be 
pleaded if the person whose legal and 
substantive position was affected by 
the decision in question did not observe 
the conditions laid down in it. 
8. The statement of reasons required 
under the first paragraph of Article 15 
of the ECSC Treaty must disclose in a 
clear and unequivocal fashion the rea­
soning followed by the institution 
which adopted the measure in question 
in such a way as to enable the persons 
concerned to ascertain the reasons for 
the measure so as to defend their rights 
and to enable the Community judica­
ture to carry out its review. It is not 
necessary for the reasoning to go into 
all the relevant facts and points of law, 
however, inasmuch as it must be 
assessed with regard not only to its 
wording but also to its context and to 
all the legal rules governing the matter 
in question. 
9. The Commission cannot authorise aid 
to an undertaking which is not com­
mercially or financially viable, merely 
to secure, by artificial means, contin­
ued employment in that undertaking, 
but thereby disturbing the equilibrium 
of the common market and placing 
competing steel undertakings at a dis­
advantage without any economic justi­
fication. Neither the right to work nor 
Article 2 of the ECSC Treaty — under 
which the Community is to safeguard 
'continuity of employment' whilst 
ensuring that 'fundamental and persis­
tent disturbances in the economies of 
Member States' are not provoked — 
can be interpreted as placing the Com­
mission under an obligation to author­
ise aid in such circumstances. Such an 
interpretation would not be consonant 
with the principle of proportionality 
which, in matters of State aid, 
demands, inter alia, that healthy com­
petition be maintained on the common 
market. 
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