Judgment — ECLI:EU:T:2009:33
Date: 2009-02-11
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;Use of State resources;General
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Italy

summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which it is based, and a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see Case T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 36 and the case-law cited). 60 In the present case, the applicants have not expounded this plea in law either in their written pleadings or at the hearing, which means that the only information that they have provided concerning the third plea in law is its abstract formulation in the heading of their first plea in law. While they stated at the hearing, in response to a question from the Court, that the arguments developing the third plea in law are to be found in the arguments developed in relation to the other pleas in law, it should be borne in mind that it is not the task of the Court to search through all the matters relied on in support of a plea in order to ascertain whether those matters could also be used in support of a second plea (see, to that effect, Case T-322/01 Roquette Frères v Commission [2006] ECR II‑3137, paragraph 209). 61 It follows that the third plea in law must be rejected as inadmissible. The fourth plea in law, alleging failure to state sufficient reasons Arguments of the parties 62 The applicants claim that the contested decision is unlawful because neither that decision itself nor the decision to initiate the procedure contains an explanation of the reasons which led the Commission to conclude that the measure at issue constitutes State aid within the meaning of Article 87(1) EC. The alleged lacunae in the statement of reasons, which weaken the contested decision, cannot be remedied by the reference made therein to the ENEL decision. The ENEL decision did not concern the measures adopted for the benefit of the ‘municipalised’ undertakings, which are the measures at issue in the present case. 63 Finally, the applicants maintain that, even if the ENEL decision were to be taken into account as part of the statement of reasons for the contested decision, some serious defects of reasoning remain. In particular, the Italian system for covering stranded costs is analysed in that decision in an imprecise manner and the conclusions reached by the Commission on the basis of the case-law of the Court of Justice concerning parafiscal charges are wrong. 64 For its part, the Commission states, first, that the Italian Government – the addressee of the contested decision – notified the measure at issue under Article 88(3) EC, categorising it as State aid, as in the case of the aid which gave rise to the ENEL decision. In the contested decision, the Commission did no more than confirm the legal categorisation adopted by the Italian Government. Secondly, in the contested decision, the Commission confirmed in their entirety the preliminary conclusions stated in the decision to initiate the procedure, on which neither the Italian Republic nor AEM Torino had submitted comments. Thirdly, the legal framework for the measure at issue is identical to that of the ENEL decision, as the Commission expressly pointed out in the contested decision. 65 Accordingly, the Commission maintains that the context – with which both the Italian Government and AEM Torino are fully conversant – in the light of which the reasons stated for the contested decision must be assessed, comprises not only the decision to initiate the procedure but also the ENEL decision, the statement of reasons for which makes it possible to understand clearly the reasoning which led to the conclusion that the measure at issue was financed through State resources. In addition, since neither the Italian authorities nor AEM Torino submitted comments on the preliminary conclusions contained in the decision to initiate the procedure, the Commission contends that the reasons for the contested decision could quite properly be set out in summary form. Findings of the Court 66 According to settled case-law, the statement of reasons for a measure must be appropriate to that measure and must disclose clearly the reasoning followed by the institution which adopted it, in such a way as to enable the persons concerned to understand the basis for it and the court to review the justification for it, without being required to go into all the relevant facts and points of law, since the question of compliance with Article 253 EC is assessed by taking the wording of that measure into account as much as its legal and factual context (see Case T-171/02 Regione autonoma della Sardegna v Commission [2005] ECR II‑2123, paragraph 73 and the case-law cited). 67 In the present case, as regards the contested decision itself, it is true that, in that decision, the Commission restricts itself, with regard to the categorisation of the measure at issue as State aid, to stating only that ‘the measure under assessment should be considered State aid’. 68 However, it must be emphasised that the contested decision was adopted in a context with which both the Italian Government and the applicants were fully conversant and that it reflects settled decision-making practice. 69 In that regard, in the first place, it should be pointed out that the Italian Government itself, in its notification of 21 March 2005 (see paragraph 4 above), categorised the measure at issue as State aid. 70 In the second place, it should be noted that, in the present case, the legal and factual context of the contested decision includes, apart from the decision to initiate the procedure, the ENEL decision, to which express reference is made in paragraph 5 of the ‘Text of letter’ in the decision to initiate the procedure and in recital 5 of the contested decision. In particular, the Commission stated, in recital 5 of the contested decision, that the measure at issue ‘is based on a similar measure approved by the Commission’, explaining that this was a reference to the measure which was the subject of the ENEL decision. 71 As it is, Section 3.1 of the ENEL decision contains a detailed statement of the reasons for which the Commission considered that the measures which were the subject of that decision constituted State aid. The Commission explained in that section, by reference to each of the conditions set out in Article 87(1) EC, in what respect it considers those conditions to be satisfied in the case of the measure in question. Those explanations are rather brief concerning the criteria of selectivity, effect on trade between Member States and grant of an advantage to the recipients, but are more extensive concerning the criterion of financing through State resources, which reflects the different levels of difficulty in the assessment of each of those criteria with regard to that measure. The Court considers that those explanations constitute, as such, a sufficient statement of reasons in the light of the case-law referred to in paragraph 66 above. 72 However, since that statement of reasons did not concern the measure at issue, but another measure, albeit of a similar character, the relevance of that statement of reasons for the assessment of the measure at issue must also be ascertained, account being taken of the differences between the two measures at issue. The applicants dispute that the ENEL decision can be taken into consideration for the purposes of appraising the statement of reasons of the contested decision, since it does not concern measures in favour of the ‘municipalised’ undertakings, which are the measures at issue in the present case, but only measures in favour of other undertakings, that is to say, undertakings belonging to the ENEL group and other companies which took over ENEL’s former plants (see paragraph 3 above). 73 In that regard, it should be noted that the measures at issue in the case which gave rise to the ENEL decision and in that which gave rise to the contested decision have the same legal bases in Italian law, as is clear from Section 2.1 of the ENEL decision and from paragraph 4 of the ‘Text of letter’ in the decision to initiate the procedure. It should also be pointed out that the recipient undertakings belong to the same economic sector, that is to say, that of the production and distribution of electricity; that those measures are intended, in both cases, to cover the stranded costs linked to the liberalisation of the electricity market as a result of the transposition of Directive 96/92; and that the methods of collection and of distribution of the sums in question are identical, since, in both cases, those sums are collected from all the final consumers of energy through the application of the same A.6 component of the electricity tariff, then managed by the Equalisation Fund on a special account, before finally being paid to the recipient undertakings of the measure. 74 Furthermore, the connection between the two measures is also demonstrated by the fact that the Commission pointed out, in Section 2.1 of the ENEL decision, that the stranded costs of the ‘municipalised’ undertakings – among which it expressly mentioned AEM Torino – were going to be the subject of separate national legislation, which would be the subject of a subsequent notification and decision. Similarly, in paragraph 5 of the ‘Text of letter’ in the decision to initiate the procedure, the Commission refers expressly to the fact that the stranded costs of the ‘municipalised’ undertakings had not, at the time, been covered by the ENEL decision. 75 It follows from the foregoing that the two measures are connected and similar to such a degree that the statement of reasons given for categorising the first measure as State aid makes the line of reasoning followed by the Commission in relation to the second measure sufficiently clear, in such a way as to enable the applicants to understand the basis for it and the court to review the justification for it, in accordance with the case-law referred to in paragraph 66 above. It appears moreover that the applicants were in a position to prepare their defence on the basis of the documents and information at their disposal, since they dispute at length, in the application, the grounds of the ENEL decision. 76 Finally, to the extent that the applicants claim that, even if the ENEL decision were to be taken into account as part of the statement of reasons for the contested decision, the Italian system for covering stranded costs is analysed there only in an imprecise way and incorrect inferences are drawn, it should be borne in mind that the absence or inadequacy of a statement of reasons constitutes a plea going to infringement of essential procedural requirements and, as such, is distinct from a plea going to the incorrectness of the grounds of the contested decision, which is reviewed in the context of the question whether a decision is well founded (Case T-84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 47). As it is, the applicants’ argument refers only to the substantive correctness of the grounds for the contested decision. Accordingly, it cannot put in question the fact that the Commission fulfilled its obligation to provide a statement of reasons in the contested decision. 77 The fourth plea in law must therefore be rejected as unfounded. The second plea in law, alleging the unlawfulness of the ‘suspension of payment of the aid’ 78 The second plea in law raised by the applicants is divided into two branches, respectively alleging lack of relevance to the present case of the judgments in Case C‑355/95 P TWD v Commission [1997] ECR I‑2549 and Joined Cases T‑244/93 and T‑486/93 TWD v Commission [1995] ECR II‑2265 (‘the Deggendorf case-law’), and failure to assess the distortion of competition resulting from the accumulation of earlier aid with the measure at issue. First branch of the second plea in law, concerning the relevance of the Deggendorf case-law – Arguments of the parties 79 The applicants maintain that, essentially, the ‘suspension of payment’ of State aid on application of the Deggendorf case-law, referred to above, presupposes the fulfilment of three conditions: (i) the aid received must have been declared unlawful; (ii) its recovery must have been ordered; and (iii) the recipient company must have failed to carry out that order. In the present case, in the tax exemptions decision, the Commission merely declared an aid regime unlawful, without however identifying the recipient undertakings and without fixing the precise amounts which they had to repay. There was therefore no recovery order with which the applicants failed to comply. 80 The applicants add that they cannot be held responsible for the possibly unjustified delay by the Italian Republic in ordering the recovery of the aid referred to in the tax exemptions decision. According to the applicants, if it were to be accepted that such a delay could, on application of the Deggendorf case-law, justify ‘suspension of payment’ of new aid which was compatible with the common market, that would be tantamount to giving that measure a clearly ‘penal’ content which was not at all the intention of the Community judicature, and which lacks any legal foundation in Community law. 81 The Commission contends, first, that the conduct that it has to examine in relation to an order for recovery is not the conduct of the recipient undertaking, but that of the Member State concerned and, secondly, that it considered that, in the present case, AEM Torino had received unlawful aid which was incompatible with the common market and which the Italian State was under an obligation to recover. The Commission notes, in that regard, that the Italian Republic was held by the Court of Justice to have acted unlawfully in so far as it had not recovered, within the prescribed time-limits, the aid covered by the tax exemptions scheme (Commission v Italy). – Findings of the Court 82 It should be noted, first, that the first subparagraph of Article 88(2) EC confers on the Commission the responsibility to implement, subject to review by the Community judicature, a special procedure for the monitoring and constant review of aid which the Member States intend to grant (Case C-301/87 France v Commission [1990] ECR I‑307, paragraph 16, and Case C-294/90 British Aerospace and Rover v Commission [1992] ECR I‑493, paragraph 10). In particular, with regard to the assessment of the compatibility of aid with the common market under Article 87(3) EC, the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context (Case C‑301/87 France v Commission, paragraph 49). Where the Commission examines the compatibility of State aid with the common market, it must take all the relevant factors into account, including, where relevant, the circumstances already considered in a prior decision and the obligations which that decision may have imposed on a Member State (Case C-261/89 Italy v Commission [1991] ECR I‑4437, paragraph 20). 83 In the Deggendorf case-law, the Court inferred from this that the Commission does not exceed the limits of its discretion when, in the case of aid which a Member State proposes to grant to an undertaking, it takes a decision declaring that aid to be compatible with the common market, but subject to the condition of prior repayment by the undertaking of unlawful aid received earlier, by reason of the cumulative effect of the aid in question (see, to that effect, Case C-355/95 P TWD v Commission, paragraphs 25 to 27). 84 The reasoning followed by the applicants is based on an erroneous interpretation of the judgment in Case C‑355/95 P TWD v Commission, and from a misunderstanding of the nature of the State aid review procedure, in that they have looked at that procedure from the angle of a relationship between the recipient undertaking and the Commission, and not from the angle of the relevant relationship in that regard, namely that between the Member State and the Commission. That erroneous approach leads the applicants to believe that, according to that case-law, the decision declaring incompatible with the common market the unlawful aid received earlier and ordering its recovery concerns the aid which the recipient undertakings have in fact received and which they have not repaid. 85 However, it should be pointed out that the only addressees of Commission decisions in the State aid field are the Member States concerned (see Article 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1), and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 45). Consequently, when the Commission takes all the relevant factors into account, including the circumstances already considered in a prior decision and the obligations which that decision may have imposed on a Member State, in application of the case-law referred to above (Case C‑261/89 Italy v Commission, paragraph 20), it examines only the obligations which such a decision imposes on the Member State concerned, not obligations which that decision might entail for the recipient undertaking. By the same token, as the Commission rightly points out, the Commission never, in the field of State aid, addresses orders for recovery to undertakings, but always to the Member States which must then, in turn, require the recipient undertakings to repay the sums received. 86 In that regard, the facts of the present case do not differ from those of the case which gave rise to the judgment in Case C-355/95 P TWD v Commission. In particular, in both cases, the Commission held that the Member State concerned had granted aid which was incompatible with the common market, without the Commission’s prior agreement, and ordered the recovery of that aid from the recipient undertakings – an order with which the Member States concerned did not comply. 87 The only difference between the two cases is the fact that, in the case which gave rise to the judgment in Case C‑355/95 P TWD v Commission, the earlier unlawful aid was individual aid which had been the subject of a decision addressed to the Member State concerned ordering the recovery of the aid from a single recipient, the amount of the aid being precisely specified, whereas, in the present case, the unlawful aid received earlier was part of a tax exemptions scheme, the exact benefit of which for the recipient undertakings could not, because of the lack of cooperation from the Italian authorities, be determined and specified in the tax exemptions decision. 88 However, that difference cannot justify not applying, in the present case, the approach adopted in the Deggendorf case-law. First, as the Commission contends, that case-law meets the need to prevent the cumulative effect of the aid which has not been repaid and of the aid which is planned, which would give an undertaking an unlawful competitive advantage, distorting competition in a way contrary to Community law (Joined Cases T‑244/93 and T‑486/93 TWD v Commission, paragraph 83). That need remains the same, whether the aid concerned is individual aid or aid granted under an aid scheme. 89 It should again be pointed out, in that regard, that the lack of precise information from the Commission, as regards the undertakings which benefit from an unlawful scheme and the precise sums they have received, does not affect the validity of an order for recovery or constitute an obstacle to its execution since, on the one hand, the Member State concerned is the entity best placed to obtain that information and, on the other hand, the Commission is entitled, in the absence of cooperation from the Member State concerned, to take a decision on the basis of the information available to it (see, to that effect, Case T‑109/01 Fleuren Compost v Commission [2004] ECR II‑127, paragraphs 48 to 51 and the case-law cited). 90 In the present case, the Commission contends – without being contradicted by the applicants – that, in the case which gave rise to the tax exemptions decision, neither the Italian Republic nor AEM Torino took the opportunity, despite repeated requests from the Commission to do so, to submit evidence concerning the specific situation of the latter with regard to the recovery of the aid in question. In particular, on no occasion did they provide evidence to show that AEM Torino was not, for reasons specific to its individual case, obliged to make such a repayment. Consequently, the Commission inferred from the evidence in its possession that AEM Torino had received unlawful aid which was incompatible with the common market and that the repayment procedure had begun but had not been completed. 91 Moreover, although the applicants claim that the analysis of their individual situation was a precondition for ordering recovery of earlier aid, it must be held that this was a task for the Italian Government in the context of the recovery procedure at national level. The Court of Justice has held that, with regard to the recovery of aid granted under an aid scheme, the obligation on a Member State to calculate the exact amount of the aid to be recovered – particularly where that calculation is dependent on information which that Member State has not provided to the Commission – forms part of the more general reciprocal obligation, incumbent upon the Commission and the Member States, to cooperate in good faith in the implementation of Treaty rules concerning State aid. Similarly, where a Member State has doubts as to the identity of the addressees of the orders for recovery, it may submit those problems to the Commission for its consideration (see, to that effect, Case C-382/99 Netherlands v Commission [2002] ECR I‑5163, paragraphs 91 and 92). The applicants’ complaints alleging failure to analyse their individual situation should therefore have been addressed to the Italian Republic, not to the Commission. 92 On the other hand, the unlawful failure of the Italian Republic to comply with its obligations in that regard – confirmed, in the present case, by the Court of Justice in Commission v Italy – cannot prevent the Commission from drawing from the evidence at its disposal all the logical inferences as regards the compatibility with the common market of the new aid which the Italian Republic intends to grant to the same undertaking. Any other approach would be tantamount to rewarding Member States which, after granting unlawful aid, go on to disregard also their duty to cooperate in good faith, and would thus deprive the system for the review of State aid of effectiveness. 93 It follows that the first branch of the second plea in law must be rejected as unfounded. The second branch of the second plea in law, alleging failure to assess the distortion of competition resulting from the accumulation of the earlier aid with the measure at issue – Arguments of the parties 94 The applicants maintain, essentially, that the Commission disregarded its obligation to demonstrate the potentially negative effects on competition of an accumulation of unlawful aid received earlier with new aid, as well as its obligation to identify the market on which those effects would arise. 95 According to the applicants, it was for the Commission to explain for what reasons the new aid – which is itself compatible with the common market – could not be paid in so far as it was likely to cause a distortion of competition if accumulated with previous aid which had not been repaid. The applicants reject any attempt by the Commission to impose on them the burden of proof as regards the cumulative effect of the aid and thus to make recognition of one of the exceptional cases specified in Article 87(3) EC subject to an additional condition. The thrust of the Deggendorf case-law is not to make the authorisation of aid subject to a new formal condition which is not provided for either in the EC Treaty or in secondary legislation, and which is therefore unlawful. 96 According to the applicants, the Commission cannot be allowed to excuse itself from carrying out such an analysis on the ground that it does not possess all the information necessary for that purpose. The fact that the Commission was not able to determine the amount of the alleged unlawful aid previously received resulted from its choice not to examine the individual situation of the undertakings concerned in the tax exemptions decision and to adopt in an abstract way a decision on an aid scheme. Shortcomings in the implementation of such a decision at national level do not authorise the Commission to blame the recipients for that while relying on the Deggendorf case-law in the examination of other aid. 97 The Commission maintains that it correctly applied the approach adopted in the Deggendorf case-law in the present case. In particular, it had borne in mind the doubts it had expressed in the decision to initiate the procedure when making reference to that case-law, concerning the risk of distortions of competition resulting from the cumulative effect of the earlier aid and the measure at issue, and it had found that those doubts had not been dispelled either by the Italian Republic or by AEM Torino. According to the Commission, in the absence of evidence to the contrary provided by the Italian Republic or by AEM Torino, it had the right to take as a basis the evidence at its disposal at the time of adoption of the contested decision in order to conclude that its doubts concerning the risk inherent in the cumulative effect of the aid in question remained. 98 According to the Commission, it follows from Case C‑355/95 P TWD v Commission, paragraph 25, that the absence of any cumulative effect flowing from the combination of new aid with unlawful aid which was received earlier and which has not been repaid is one of the general conditions which make it possible to rely on one of the exceptions provided for in the Treaty with respect to the compatibility of aid with the common market. Accordingly, it is necessary to apply the settled case-law according to which it is for the Member State concerned to submit all evidence which would enable the Commission to ascertain whether the conditions for recognition of the exception are satisfied. 99 In addition, the Commission observes that, if the possibility of applying the approach adopted in the Deggendorf case-law were to depend on the circumstance that the Member States had completed their investigations and had provided the Commission with the information concerning the amount of the aid received by the various recipient undertakings, that would deprive the system for the review of State aid of effectiveness, while ‘rewarding’ the Member States which do not comply with their duties regarding the provision of information and of sincere cooperation. – Findings of the Court 100 First of all, it should be borne in mind that, according to consistent case-law, the Member State which seeks to be allowed to grant aid under one of the exceptions provided for in the Treaty rules has a duty to cooperate with the Commission, pursuant to which it must in particular provide all the information necessary to enable the Commission to verify that the conditions for the derogation sought are fulfilled (Case C‑364/90 Italy v Commission [1993] ECR I‑2097, paragraph 20; Joined Cases T‑132/96 and T‑143/96 Freistaat Sachsen and Others v Commission [1999] ECR II‑3663, paragraph 140; and Regione autonoma della Sardegna v Commission, paragraph 129). 101 That obligation has been extended to apply to a potential recipient of planned aid. It has been held that, since the decision to initiate the procedure provided for in Article 88(2) EC contains an adequate preliminary analysis by the Commission, setting out the reasons for its doubts regarding the compatibility of the aid in question with the common market, it is for the Member State concerned and the potential recipient of the aid to adduce evidence to show that the aid is compatible with the common market and, if necessary, to plead specific circumstances relating to recovery of aid already paid, should the Commission require its repayment (Fleuren Compost v Commission, paragraph 45; see also, to that effect, Case T‑176/01 Ferriere Nord v Commission [2004] ECR II‑3931, paragraphs 93 and 94, and, by analogy, Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 170). 102 The applicants submit that the obligation of the Member State and the recipient undertaking to provide the Commission with information to show that the proposed aid is compatible with the common market cannot be extended to the cumulative effect of earlier unlawful aid and new aid, given that the latter aspect forms no part of the conditions for falling within one of the exceptions listed in Article 87(3) EC. 103 That argument cannot be upheld. First, there is nothing in the wording of the judgment in Case C-355/95 P TWD v Commission or in the judgment in Joined Cases T-244/93 and T-486/93 TWD v Commission to suggest that the Court of Justice and the Court of First Instance intended to introduce a new condition for the compatibility of State aid with the common market, different from those set out in Article 87(3) EC. On the contrary, they clearly held that the criterion that there must be no cumulative effect of the new aid under consideration and earlier unlawful and incompatible aid that has not been repaid fell within the scope of the general examination of the compatibility of aid which the Commission must undertake, and therefore was merely one of the factors to be taken into consideration by the Commission when it applies Article 87(3) EC. The Court of First Instance found, in paragraph 56 of the judgment in Joined Cases T-244/93 and T-486/93 TWD v Commission, that, where the Commission considers the compatibility of State aid with the common market, it must take into account all the relevant factors, including, where relevant, the circumstances already considered in a prior decision and the obligations which the Commission may have imposed on a Member State by means of that decision. The Court of First Instance concluded from this that the Commission has the power to take into consideration (i) any cumulative effect of the earlier aid and the new aid and (ii) the fact that the earlier aid, declared unlawful, has not been repaid. To this, the Court of Justice added, in paragraph 26 of its judgment in Case C-355/95 P TWD v Commission, that under Article 87(3) EC, which applied to the decisions contested in that case, the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context. 104 It follows that the obligation on the Member State, and on the undertaking that is the potential recipient of new aid, to provide the Commission with information to show that the aid is compatible with the common market (see the case-law referred to in paragraph 100 above) also entails the need to show that there is no cumulative effect of the new aid and earlier unlawful aid that was incompatible with the common market and that has not been repaid. 105 It remains to be examined whether the condition laid down in that case-law is satisfied in the present case, by checking whether the decision initiating the procedure contains an adequate preliminary analysis setting out the reasons for which the Commission had doubts regarding the compatibility of the aid with the common market. 106 In that respect, it must be held that the Commission explained in detail, in paragraph 31 et seq. of the ‘Text of letter’ in the decision initiating the procedure, the reasons for which it intended, in accordance with the approach adopted in the Deggendorf case-law, to make the compatibility of the aid at issue conditional upon the prior repayment of the unlawful aid granted under the tax exemptions scheme. 107 In particular, the Commission stated, in paragraphs 35 and 37 of the ‘Text of letter’ in the decision initiating the procedure, that the Italian authorities had not been able to indicate the amount of the sums that AEM Torino had to repay, or the payment conditions and deadlines, and that, in those circumstances, the Commission took the view that it was not in a position to assess the cumulative effect of the old aid and the new aid or the distortion of competition in the common market that might ensue. 108 Accordingly, it was for the Italian Republic and AEM Torino to provide the Commission with information, in the context of the formal investigation procedure, to show that there was no cumulative effect of the old aid and the measure at issue and that the measure at issue would not result in distortion of competition in the common market. Consequently, the applicants must not be allowed to criticise the Commission for not setting out, in the contested decision, the potentially negative effects on competition of an accumulation of earlier unlawful aid with the measure at issue, since it was not for the Commission, given the lack of cooperation from the Italian Republic and the applicants, to seek out proof of such effects. 109 As for the applicants’ criticism that the Commission failed to analyse the market, it should be borne in mind that the Commission merely needs to establish that the aid in question is of such a kind as to affect trade between Member States and distorts or threatens to distort competition. Contrary to the applicants’ claim, it does not have to define the market in question (see, to that effect, Case 730/79 Philip Morris Holland v Commission [1980] ECR 2671, paragraphs 9 to 12, and Joined Cases T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98 Alzetta and Others v Commission [2000] ECR II‑2319, paragraph 95). 110 In the present case, as stated above, the Commission was unable, because of the lack of cooperation from the Italian authorities and AEM Torino in its capacity as the potential recipient of the measure at issue, to assess the cumulative effect of the earlier unlawful aid and the new aid, or any possible effects it might have on competition. According to the approach adopted in the case-law referred to in paragraphs 100 and 101 above, the applicants cannot turn the failure of the Italian Republic to fulfil its obligation to provide the Commission with all the information to enable it to undertake that assessment, or even their own lack of cooperation in the matter, into a basis for criticising the Commission for the lack of a definition or analysis of the market at issue, which such an assessment would have rendered unnecessary. 111 It follows that the second branch of the second plea in law must be rejected. 112 Since the pleas in law relied upon by the applicants have all been rejected, the action must be dismissed in its entirety. Costs 113 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Iride SpA and Iride Energia SpA to pay the costs. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 11 February 2009. [Signatures] * Language of the case: Italian.