Judgment — ECLI:EU:C:2003:388
Date: 2003-07-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Private investor/private creditor test
Procedure: Action for annulment;Appeal - successful
Origin: France

SUMMARY — JOINED CASES C-83/01 P, C-93/01 P AND C-94/01 P 
Summary of the Judgment 
State aid — Definition — Logistical and commercial assistance provided by an under­
taking entrusted with a service of general economic interest to its subsidiary — Not 
included —· Conditions — Whether additional, variable costs are covered — Appropri­
ate contribution to the fixed costs arising from use of the network set up by that 
undertaking — Adequate return on the capital investment used for the subsidiary's 
competitive activity 
(EC Treaty, Art. 90(2) (now Art. 86(2) EC) and Art. 92(1) (now, after amendment, 
Art. 87(1) EC)) 
In the absence of any possibility of compar­
ing the situation of an undertaking 
entrusted with a service of general econ­
omic interest within the meaning of 
Article 90(2) of the Treaty (now 
Article 86(2) EC), such as an undertaking 
operating as a legal monopoly in the 
ordinary mail sector whose network would 
never have been created by a private 
undertaking, with that of a private group 
of undertakings not operating in a reserved 
sector, the criterion, necessarily hypotheti­
cal, of 'normal market conditions', which 
makes it possible to ascertain whether the 
provision of logistical and commercial 
assistance by a public undertaking to its 
subsidiary, which is governed by private 
law, is capable of constituting State aid, 
must be assessed by reference to the 
objective and verifiable elements which 
are available. 
The costs borne by that undertaking in 
respect of the provision of such assistance 
can constitute such objective and verifiable 
elements. On that basis, there is no ques­
tion of State aid to the subsidiary if, first, it 
is established that the price charged 
properly covers all the additional, variable 
costs incurred by the provision of that 
assistance, an appropriate contribution to 
the fixed costs arising from use of the 
postal network and an adequate return on 
the capital investment in so far as it is used 
for the subsidiary's competitive activity and 
if, second, there is nothing to suggest that 
those elements have been underestimated 
or fixed in an arbitrary fashion. 
(see paras 34, 36, 38-40) 
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