Judgment — ECLI:EU:T:2009:50
Date: 2009-03-04
Language of the case: Italian
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;Applications by natural or legal persons;Use of State resources;General;Commission decision following the formal investigation procedure;Damage to competition and effect on trade;Selective nature of the measure
Procedure: Action for annulment - unfounded
Origin: Italy

summary of the contested decision in paragraphs 15 to 22 above, the Commission states, in the description of the measure at issue, that investment vehicles may take the form of a contractual investment fund without legal personality, managed by a fund manager, a corporate investment fund (such as a SICAV) or a pension fund (recital 13). 71 In returning to the reasons which led it to initiate the procedure, the Commission states, in recital 29 of the contested decision, that, in raising doubts as to the possible existence of aid for specialised investment vehicles, it held them to be ‘undertakings’ within the meaning of Article 87(1) EC because they either have a corporate form and constitute business entities in themselves or constitute separate assets managed by undertakings that compete on investment markets. 72 In recital 35 of the contested decision, the Commission introduces its assessment of the aid by stating that the tax reduction for investors constitutes State aid not only for specialised vehicles but also for small- and mid-caps whose shares are held by those vehicles. 73 It then structures its analysis in accordance with that distinction, by devoting recitals 36 to 41 of the contested decision to the selective advantage for specialised investment vehicles and recitals 42 and 43 to the selective advantage for the small- and mid-caps in question. 74 Regarding the specialised investment vehicles, the Commission observes, in recital 36 of the contested decision, that, in certain cases, investment vehicles are undertakings within the meaning of Article 87 EC and may therefore benefit from the tax reduction provided for by Article 12 of DL 269/2003. The Commission adds that, even if specialised investment vehicles do not benefit directly from the tax reduction granted to their investors, they none the less receive an indirect economic benefit in so far as the measure at issue prompts investors to buy shares in such vehicles, thereby providing additional liquidity and extra income in terms of management and entry fees. 75 In recital 37 of the contested decision, the Commission takes note of the comment by the Italian authorities to the effect that the specialised investment vehicles benefiting from the reduced tax pursuant to Article 12 of DL 269/2003 are simply pools of assets and so cannot be regarded as undertakings within the meaning of Article 87 EC. The Commission notes, however, that in some cases such investment vehicles take corporate form and may therefore benefit individually. The Commission further points out that other investment vehicles without legal personality are managed by undertakings which compete with other operators managing savings and that those undertakings may accordingly benefit from advantages. 76 The Commission goes on to state in recital 38 of the contested decision that it considers that specialised investment vehicles, whether or not they have corporate form, perform an economic activity and therefore constitute undertakings within the meaning of Article 87(1) EC. It states that this is confirmed by the case-law of the Court in the field of VAT, according to which transactions carried out by SICAVs and consisting in collective investment in transferable securities constitute an economic activity carried out by taxable persons within the meaning of the VAT directives. 77 In recital 39 of the contested decision, the Commission infers from the foregoing that a tax advantage for investors in specialised investment vehicles favours the vehicles themselves as undertakings when they have corporate form or the undertakings managing such vehicles when they have contractual form. 78 In recital 40 of the contested decision, the Commission states that the condition of selectivity is fulfilled because the measure at issue provides for a tax reduction that is extraordinary and limited to the specialised investment vehicles and their managing undertakings. It adds that, according to the case-law, the fact that the advantage is only indirect cannot rule out the existence of State aid. 79 The Commission accordingly concludes, in recital 41 of the contested decision, that the measure at issue confers that specific indirect advantage on specialised investment vehicles and their managing undertakings, to the detriment of other undertakings offering alternative forms of investment. 80 It is evident from the foregoing that the contested decision contains a statement of reasons for the finding that a selective indirect advantage had been conferred on specialised investment vehicles. It explains how – even though the manner varies according to their legal form – the various investment vehicles referred to may be regarded as pursuing an economic activity and therefore categorised as undertakings within the meaning of Article 87 EC. The undertaking which is the beneficiary of the advantage is either the investment vehicle itself if it has corporate form, or the undertaking managing it if it has contractual form. 81 The applicants, however, point to a number of contradictions in the statement of reasons for the contested decision. 82 In that connection, it should be borne in mind that a contradiction in the statement of the reasons on which a decision is based constitutes a breach of the obligation laid down in Article 253 EC such as to affect the validity of the measure at issue if it is established that, as a result of that contradiction, the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the enacting terms of the decision are, wholly or in part, devoid of any legal justification (Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 85). 83 As regards, first, the alleged contradiction between the statement of reasons for the contested decision and the reasons given for the initiating decision, it is clear that even if there were a divergence in reasons between the two decisions, that would not mean that the applicants are not in a position to ascertain the reasons for the contested decision, which are apparent therefrom. 84 Moreover, under Article 6(1) of Regulation No 659/1999, the initiating decision summarises the relevant issues of fact and law, includes a preliminary assessment on the part of the Commission and sets out the reasons for doubts as to the compatibility of the measure with the common market. The formal investigation procedure enables a more in-depth examination and clarification of the questions raised in the initiating decision. It follows from Article 7 of Regulation No 659/1999 that, at the end of that procedure, the Commission’s analysis may have changed, as it may ultimately decide that the measure does not constitute aid or that the doubts as to the compatibility of the measure have been removed. It follows that the final decision may contain certain differences with respect to the initiating decision, without their necessarily vitiating the final decision. 85 In any event, there is no contradiction in the present case between the initiating decision and the contested decision, as regards either the advantage referred to or the vehicles in question. 86 As regards the indirect advantage conferred on specialised investment vehicles by the measure at issue, the Commission had already stated in the initiating decision that this could reside in the fact that, by increasing their after-tax income, it favoured demand on the part of investors for shares in those vehicles. That assessment cannot be regarded as contradictory to that set out in recital 36 of the contested decision, to the effect that specialised investment vehicles derive an indirect advantage from the measure at issue ‘in so far as the tax reduction on investments in specialised vehicles prompts investors to buy shares in such vehicles, thereby providing additional liquidity and extra income in terms of management and entry fees’. Moreover, the fact that the Commission did not return in the contested decision to the complaint relating to the granting of a direct advantage to specialised investment vehicles, as conferred through the tax reduction, cannot be regarded as a contradiction. 87 As regards the investment vehicles at issue, the applicants are also incorrect in arguing that the beneficiaries in question are no longer specialised investment vehicles, but rather investment vehicles with corporate form or, where those vehicles are in the form of investment funds, the companies which manage them. 88 First of all, according to the wording of the contested decision, specialised investment vehicles continue to be regarded as the beneficiaries of the measure at issue, even though it is stated that it is the vehicles themselves that are favoured where they have corporate form and, where they have contractual form, it is the undertakings which manage them that are favoured (recital 39). 89 Secondly, in the initiating decision, the Commission had already noted that the tax reductions applied to specialised investment vehicles could also favour companies managing such funds, which are also undertakings within the meaning of Article 87(1) EC. 90 The applicants argue, as a second point, that there are various inaccuracies and contradictions in the statement of reasons for the contested decision. 91 As regards, first, the beneficiaries of the measure at issue and their categorisation as undertakings within the meaning of Article 87(1) EC, it is clear from recital 35 of the contested decision that the Commission considered that the measure at issue constitutes State aid for specialised investment vehicles and small- and mid-caps whose shares are held by those vehicles. 92 As regards specialised investment vehicles, it is apparent from recitals 13 and 37 that they may take a number of forms which are, essentially, for present purposes, the form of a contractual investment fund without legal personality managed by a fund manager or that of an investment fund established in corporate form, such as a SICAV. 93 It is thus quite logical on the part of the Commission to state, in recital 39 of the contested decision, that the measure at issue favours the vehicles themselves as undertakings where they have corporate form or the undertakings managing such vehicles where they have contractual form. Pursuing a consistent approach, the Commission concludes its assessment of investment vehicles in their various forms by repeating, in recital 41 of the contested decision, that the advantage in question is conferred on both investment vehicles and their managing undertakings. 94 The applicants – one acting in its capacity as managing undertaking of two funds affected by the measure at issue and the other as an association representing such managing undertakings – were thus in a position to ascertain the reasons for the contested decision and to understand how they were themselves covered by that decision. 95 That finding is not called into question by the alleged contradiction in recital 38 of the contested decision. 96 Through its reference to the case-law of the Court of Justice concerning the tax treatment of SICAVs, that recital is clearly intended to demonstrate that SICAVs are to be categorised as undertakings. Although that demonstration may in some aspects appear questionable or ambiguous, first, it does not concern the applicants but rather the SICAVs and, secondly and more importantly, that recital must not be read out of context but in the light of the contested decision as a whole and its enacting terms, for which it is not, by itself, the only essential ground. Accordingly, that recital cannot be said to call into question any inferences which the applicants might make in their regard from the reasons for the contested decision, as they emerge, inter alia, from recitals 13, 29, 36, 37, 39 and 41. 97 As regards, secondly, the failure to state reasons in relation to the selective advantage conferred on small- and mid-caps whose shares are held by specialised investment vehicles, it is clear that the Commission devotes recitals 42 and 43 of the contested decision to that point. 98 In recital 42 of the contested decision, the Commission states that the advantage for those companies consists in an increased demand for their shares and in increased liquidity. The Commission rejects the argument that there would be no advantage for small- or mid-caps, since funds and investors seek above all to maximise profits. The Commission finds, on the contrary, that more favourable tax treatment enhances the attractiveness of such an investment, with increased liquidity for small- and mid-caps, even in the absence of any active behaviour on their part with a view to benefiting from such an advantage. 99 In recital 43 of the contested decision, the Commission then refutes the argument that the measure at issue constitutes a general tax policy measure designed to favour the capitalisation of small- and mid-caps, which accordingly falls outside the scope of the rules on State aid. 100 The Commission has thus clearly provided a statement of reasons in the contested decision for its conclusion that there is a selective advantage for small- and mid-caps whose shares are held by specialised investment vehicles. What is more, the applicants’ challenge is directed, rather, at the soundness of the reasons given, which, in accordance with the case-law cited in paragraph 66 above, cannot be contested in the context of the present plea. 101 The first part of the first plea must therefore be rejected. The second part of the first plea: failure to state reasons for the finding of a distortion of competition which may affect trade between Member States 102 It should be borne in mind that, although the Commission is required, in the reasons for its decision, to refer at least to the circumstances in which aid has been granted where those circumstances show that the aid is such as to affect trade between Member States, it is not required to demonstrate the actual effect of aid already granted. If it were so required, that requirement would ultimately give Member States which grant unlawful aid an advantage over those which notify aid at the planning stage (Technische Glaswerke Ilmenau v Commission, paragraph 67 above, paragraph 215). 103 In the light of that case-law, it does not appear in the present case that the Commission has failed to fulfil its obligation to give sufficient reasons for the contested decision. 104 In fact, the Commission devotes three recitals of the contested decision to the assessment of the effect of the measure at issue on competition, first, by explaining how, in its view, the measure at issue distorts competition and affects intra-Community trade and, secondly, by responding to certain criticisms put forward during the procedure leading up to the adoption of the contested decision. 105 In recital 45 of the contested decision, the Commission thus states that the measure at issue may distort competition between undertakings and affect trade between Member States since ‘the beneficiary companies can operate in international markets and pursue commercial and other economic activities in markets where competition is intense’. It adds that specialised investment vehicles ‘compete with other financial undertakings and operate in an open market characterised by substantial intra-Community trade’ and that certain small- and mid-caps are active in sectors where trade between Member States takes place. 106 In recital 46, the Commission rejects the argument relating to the limited tax cost of the measure at issue and the small number of specialised vehicles operating in 2004, the reference year in the procedure initiated by the Commission in respect of the measure at issue. It refers, first of all, to settled case-law according to which even a small amount of aid affects competition. Secondly, it states that the Italian Republic does not rule out the possibility that the measure at issue may have a far more substantial economic impact in the future. It adds that the limited impact of the measure at issue may also be explained by the influence of the Commission’s prompt action in the matter on the behaviour of the operators. Lastly, the Commission states that the information presented by the Italian Republic does not indicate that the benefits accruing to any individual beneficiary from the measure at issue fall within the limit for de minimis aid. 107 The Commission concludes, in recital 47 of the contested decision, that the measure at issue ‘alters (by way of the tax treatment accorded to investors) the competitive position of certain undertakings pursuing economic activities and, in so far as the latter operate on markets open to international competition, affects competition’. 108 The statement of reasons for the contested decision thus enables the applicants and the Community judicature to ascertain the reasons why the Commission reached the conclusion that the conditions for the application of Article 87(1) EC relating to effect on trade between Member States and distortion of competition were satisfied in the present case. 109 The applicants cannot criticise the Commission for not examining more closely the actual effects of the aid at issue on trade between Member States and on competition. The Commission was not under a duty to carry out an economic analysis of the actual situation on the relevant market, or of the market share of the beneficiary undertakings, or of the position of competing undertakings, or of trade flows between Member States in the services in question, since it had explained how the aid at issue distorted competition and affected trade between Member States. As the aid had not been notified, the Commission was not required to establish the actual effects of that aid (see, to that effect, CETM v Commission, paragraph 55 above, paragraphs 102 and 103). 110 Accordingly, the second part of the first plea, alleging failure to state reasons in the contested decision for the finding that the measure at issue had effects on competition and on intra-Community trade, is unfounded. 111 The first plea in law must therefore be dismissed in its entirety. 2. The second plea: infringement of Article 87(1) EC in so far as the measure at issue does not constitute State aid Arguments of the parties 112 By the first part of their second plea, the applicants submit that the measure at issue does not constitute State aid, but rather a general tax measure, since it benefits all investors in shares in investment vehicles. 113 The applicants argue, first, that the tax reduction resulting from the measure at issue provides a direct benefit to holders of shares in investment vehicles. In the case of foreign investment vehicles, that measure consists in the direct reduction from 12.5% to 5% in the rate of deduction from income for investors in shares in those investment vehicles, whereas in the case of Italian investment vehicles the same measure, entailing a reduction in the substitute tax rate applicable to those investment vehicles, results in an immediate and direct increase in the amounts investors may obtain at the time of regular income distributions or redemption of shares. Moreover, the increase in the investment vehicles’ capital benefits only their investors and not the managing undertakings. In the case of SICAVs, the applicants state that there can be no increases in the management fees charged, since the SICAVs entrust other undertakings with the management of their assets. As for specialised investment vehicles whose seat is outside Italy, the applicants maintain that the management fees are proportional to gross operating result, without deductions of substitute tax, as those investment vehicles are not subject to substitute tax on operating result. 114 The applicants observe, secondly, that the investors in question are mostly individuals and not undertakings, with the result that the finding in the contested decision that the measure at issue constitutes State aid is incorrect. 115 By the second part of their second plea, the applicants submit that no selective economic advantage results from the tax reduction introduced by the measure at issue for SICAVs and fund managers. 116 The applicants begin by stating that the tax reduction in question does not as such ensure that the undertakings managing specialised investment vehicles will obtain additional fees. Even if the measure at issue could prompt investment in shares in specialised investment vehicles, the companies which manage them would not necessarily benefit. Investment in shares in specialised investment vehicles could in fact give rise to transfers of shares in non-specialised investment vehicles. Where investment vehicles are managed by the same fund manager, the increase in fees charged for the management of specialised investment vehicles is offset by the decrease in those charged for the management of non-specialised investment vehicles. It has never been demonstrated that there is an indirect economic advantage for the companies concerned. 117 The applicants add that the Commission normally takes the view that measures which are favourable to investment vehicles and funds do not translate into State aid for the undertakings which manage them. The applicants further state that the management fees represent a cost for the SICAVs, not income. 118 The applicants claim, secondly, that there is no selectivity in the hypothetical advantage conferred on SICAVs and fund managers. In actual fact, the advantage described by the Commission in the contested decision is accessible to all fund managers, as they are free to set up investment vehicles which comply with the conditions imposed by the measure at issue. Likewise, existing funds or SICAVs may act as specialised investment vehicles. In any event, the selectivity of the advantage in question cannot result from the inability, on the part of undertakings resorting to other types of investment instrument in order to raise capital, to benefit from the measure at issue. According to the applicants, to see things in that way is to construe too broadly the concept of selectivity and to stretch the concept of State aid to cover reduced rates of tax which are applicable only to income from certain types of investment instrument. 119 By the third part of the second plea, the applicants challenge the notion that investment vehicles may be categorised as undertakings. 120 They submit that investment funds are merely pools of assets without separate legal personality. Moreover, since the Commission acknowledged in the initiating decision that the funds do not produce goods and do not provide any service, it cannot consider those funds to be undertakings. Furthermore, Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (OJ 2003 L 157, p. 38) treats income deriving from payments distributed by investment vehicles as interest and not as operating result. 121 By the fourth part of the second plea, the applicants challenge the finding that the measure at issue gave rise to the granting of a selective economic advantage for small- and mid-caps whose shares are held by specialised investment vehicles. 122 It is difficult to imagine how a measure for a derisory amount (approximately EUR 600 000), benefiting a large number of companies (estimated by the applicants as 6 900 companies), can lead to an increase in investments and a corresponding increase in liquidity for the companies in question. The Commission has in no way demonstrated the alleged effect in the contested decision. 123 In any event, the purpose of the measure at issue is not to increase the liquidity of small-caps, but rather to encourage investors to diversify their investment portfolios. Assogestioni explicitly challenges the remarks made about it by the Commission in recital 32 of the contested decision, to the effect that the measure at issue aims to foster the capitalisation of those companies. Lastly, the applicants submit that the measure at issue does not have the effect of reducing the expenses associated with investing in the companies in question, which means that it does not give rise to investment aid for fund managers. 124 Even if the measure at issue entailed an indirect economic advantage for small- and mid-caps, the applicants deny the selectivity of such an advantage, as the situation of those companies is not comparable to that of the other listed companies. Any hypothetical advantage conferred on listed small- and mid-caps is thus justified by the objective pursued by the measure at issue. 125 The Commission challenges the applicants’ arguments. Findings of the Court 126 By their second plea, the applicants take issue with the substance of the contested decision as regards: the identification of the beneficiaries of the measure at issue (first part); the conferral of a selective advantage on various categories of alleged beneficiary (second and fourth parts); and the categorisation of various investment vehicles as undertakings (third part). It is appropriate to deal with the first and third parts of this plea together. The identification of the beneficiaries of the measure at issue and their categorisation as undertakings 127 It should be borne in mind that Article 87 EC prohibits aid granted by a State or through State resources in any form whatsoever, without drawing a distinction as to whether the aid-related advantages are granted directly or indirectly. The case-law has thus acknowledged that an advantage granted directly to certain natural or legal persons who are not necessarily undertakings may constitute an indirect advantage, hence State aid, for other natural or legal persons who are undertakings (see, to that effect, Case C-156/98 Germany v Commission [2000] ECR I‑6857, paragraphs 22 to 35, and Case C‑382/99 Netherlands v Commission [2002] ECR I‑5163, paragraphs 38 and 60 to 66). 128 According to recital 35 of the contested decision, ‘the tax reduction for investors constitutes State aid … for specialised vehicles investing in shares of [small- and mid-caps]’. In recital 36 of the contested decision, the Commission states that ‘even if specialised investment vehicles do not benefit directly from the tax reduction granted to their investors, they none the less receive an indirect economic benefit’. It repeats, in recital 39 of the contested decision, that it considers that a tax advantage conferred on investors investing in specialised investment vehicles favours those vehicles themselves. 129 Moreover, it emerges from recital 42 of the contested decision that, according to the Commission, the measure at issue confers an indirect selective advantage on small- and mid-caps whose shares are held by specialised investment vehicles, consisting in increased demand for their shares and increased liquidity. 130 It is accordingly apparent from the contested decision that, although the Commission did not find that investors are the direct beneficiaries of the measure at issue, it categorised that measure as State aid in relation to its indirect beneficiaries which, in its view, are specialised investment vehicles and small- and mid-caps. 131 Moreover, in keeping with the case-law cited in paragraph 127 above, the fact that – as the applicants state – the measure at issue cannot constitute State aid for investors in specialised investment vehicles does not prevent it from being categorised as such in relation to undertakings which are only the indirect beneficiaries of the measure. It is not necessary, in order to found a finding of the existence of intervention by means of State resources in favour of an undertaking, that the undertaking must be the direct beneficiary (Case T‑93/02 Confédération nationale du Crédit mutuel v Commission [2005] ECR II‑143, paragraph 95). 132 Accordingly, the Commission did not err in law in assessing the measure at issue in relation to its indirect beneficiaries. 133 It follows that the applicants’ line of argument seeking to show the absence of State aid in terms of there being direct beneficiaries of the measure at issue has no bearing on the issue. It is not in relation to direct beneficiaries that the conditions laid down in Article 87(1) EC must be satisfied, but rather in relation to the indirect beneficiaries. 134 In that context, before determining whether there is an advantage in their favour, it is appropriate to consider – as the applicants invite the Court to do by the third part of this plea – whether the Commission was entitled to categorise the various indirect beneficiaries concerned as undertakings. 135 In that regard, it is clear that the contested decision distinguishes between two scenarios (see recitals 13, 29, 37 and 39, and paragraphs 75, 77, 92 and 93 above). In certain cases, those investment vehicles have corporate form and may themselves benefit, as undertakings, from the advantage in question. In other cases, those vehicles do not have legal personality, but are managed by undertakings which are favoured within the meaning of Article 87 EC. Accordingly, even though the specialised investment vehicles referred to in Article 12 of DL 269/2003 are, as the applicants argue, mere pools of assets without legal personality, it is, according to the contested decision, the undertakings which manage them which derive an indirect benefit from the advantage in question. Neither the existence of the companies which manage those contractual investment funds without legal personality, nor their categorisation as undertakings, has been disputed. It follows that the measure at issue indeed favours undertakings within the meaning of Article 87(1) EC. 136 In any event, it should be borne in mind that, since the present case concerns a State aid scheme, the Commission could legitimately confine itself to examining the general characteristics of the scheme at issue, without being required to examine each particular case in which it applies (see the case-law cited in paragraph 68 above). The Court of Justice has held that it is sufficient, for the purposes of applying Article 87(1) EC to an aid scheme, that the scheme benefit certain undertakings, a finding not called into question by the fact that it may also benefit entities which are not undertakings (see, to that effect, Case C-66/02 Italy v Commission [2005] ECR I‑10901, paragraphs 91 and 92). Accordingly, the Commission could legitimately confine itself to showing that in certain cases the investment vehicles are undertakings (recital 36 of the contested decision). 137 The first and third parts of the second plea are therefore unfounded. The existence of a selective advantage in favour of the specialised investment vehicles or of the undertakings which manage them 138 It should be borne in mind that, inter alia, measures which, in various forms, mitigate the charges which are normally borne by the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect, are considered to be aid (see, inter alia, Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraph 23, and Case C‑387/92 Banco Exterior de España [1994] ECR I‑877, paragraph 13). 139 It is apparent from recital 36 of the contested decision that specialised investment vehicles are conferred an indirect advantage, since the tax reduction on investments in specialised vehicles prompts investors to buy shares in those vehicles, thereby providing them with additional liquidity and extra income in terms of management and entry fees. In recital 39 of the contested decision, the Commission repeats that the increased demand for shares in specialised investment vehicles leads to an increase in the management and entry fees charged by the vehicles or by the undertakings managing them. 140 The applicants nevertheless dispute the existence even of such an advantage in favour of specialised investment vehicles and the undertakings managing them. 141 As regards the argument that solely the skill of the undertakings managing specialised investment vehicles enables them to earn extra fees, it is clear that, as acknowledged by the applicants themselves, the measure at issue tends to encourage investors to invest in shares in that type of investment vehicle. As it is not disputed that fees are paid in proportion to the volumes concerned where investments are made in shares and/or funds managed, even though the details may vary, the increase in shares purchased will inevitably lead to an increase in the management and entry fees charged by those vehicles or by the undertakings managing them, as stated by the Commission in recital 39 of the contested decision. The applicants’ argument is therefore unfounded. 142 As to the argument alleging an offsetting between any increase in the fees charged for the management of specialised investment vehicles and the decrease in those charged for the management of non-specialised investment vehicles, the Court notes, first, that the Commission, in recital 36 of the contested decision, referred to both management fees and entry fees. The applicants’ line of argument refers only to management fees, however. Secondly, although it is possible that in certain cases there may well be an offsetting of management fees as alleged by the applicants, there is nothing to indicate that it will be automatic and thus cancel out in all cases the advantage conferred by the measure at issue. 143 In any event, the fact that the advantage conferred by the measure at issue may sometimes be cancelled out is not sufficient in itself to preclude its being categorised as an advantage for the purposes of Article 87(1) EC. It is sufficient that the measure at issue lead to an increase in demand for shares in specialised investment vehicles, hence of the management and entry fees charged by those vehicles or by the undertakings managing them, for those undertakings to be favoured within the meaning of Article 87(1) EC, independently of the condition of selectivity. It is irrelevant in that regard whether the figure representing the total of the fees charged by those undertakings before the adoption of the measure at issue, all vehicles and all transactions taken together, actually increased or is liable to increase. 144 It should also be noted that, when the applicants observe that management fees are a cost for the SICAVs because they are paid to the companies managing them, they are endorsing the argument put forward by the Commission to the effect that, when a specialised investment vehicle is managed by a managing undertaking, it is the latter which derives the benefit of the measure at issue in the form of an increase in management and entry fees (see recital 39 of the contested decision). 145 Nor, lastly, is the applicants’ line of argument concerning the Commission’s decision-making practice any more convincing. It should be borne in mind that the concept of State aid must be applied to an objective situation, which falls to be appraised on the date on which the Commission takes its decision (Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 137), the sole test being whether a State measure confers an advantage on one or more particular undertakings (Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraph 180). Accordingly, the Commission’s decision-making practice in the area, with which the parties moreover disagree, cannot be a decisive factor. 146 Thus, none of the arguments put forward by the applicants to disprove the existence of an advantage for specialised investment vehicles or the undertakings managing them is well founded. 147 The applicants also deny that the measure at issue is selective in respect of those vehicles or undertakings. 148 As is apparent from the terms of Article 87(1) EC, an economic benefit granted by a Member State constitutes State aid only if, by displaying a degree of selectivity, it is such as to favour ‘certain undertakings or the production of certain goods’. For the purposes of applying that provision, the only question to be determined is whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ within the meaning of Article 87(1) EC as compared with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure at issue (see Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I‑8365, paragraphs 34 and 41 and the case-law cited). 149 According to the case-law of the Court of Justice, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not satisfy that condition of selectivity (Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, paragraph 148 above, paragraph 42). 150 As regards, first, specialised investment vehicles which are companies and can themselves benefit, as undertakings, from the advantage at issue (see above, paragraph 135), as indicated by the description in recitals 11 to 19 of the contested decision and the explanation provided in recital 40 thereof, the measure at issue provides for a tax reduction ‘limited to [specialised investment vehicles] and their managing undertakings’. As it is intended to be limited to well-defined investment vehicles which fulfil specific conditions ‘to the detriment of other undertakings offering alternative forms of investment’ (recital 41 of the contested decision), it favours certain investment vehicles as compared with others which are in a comparable legal and factual situation as contemplated in the case-law cited in paragraph 148 above. The measure at issue is therefore selective for the purposes of Article 87(1) EC. 151 Viewed in that light, the applicants’ argument that the advantage deriving from the measure at issue is available for any investment vehicle fulfilling the conditions laid down, with the result that it is a general measure, is not convincing. 152 The mere fact that the advantage may benefit any investment vehicle fulfilling the conditions laid down does not suffice to establish that the measure at issue is general in scope and does not preclude the measure at issue from being selective in nature (see, to that effect, Joined Cases T‑92/00 and T‑103/00 Diputación Foral de Álava and Others v Commission [2002] ECR II‑1385, paragraph 58). 153 It follows that the measure at issue confers a selective advantage on certain specialised investment vehicles and thus falls within the scope of Article 87(1) EC. This finding is not affected by the fact that some of the beneficiaries of the aid scheme at issue here are not undertakings (see paragraph 136 above). Accordingly, those considerations are in any event sufficient reason to reject the second part of the second plea. 154 For the sake of completeness, it should be observed, as regards more specifically those specialised investment vehicles which do not have legal personality, that the Commission takes the view that the measure at issue favours managing undertakings, whose status as undertakings is not disputed (see, inter alia, recitals 37 and 39 of the contested decision). What is more, it is clear that the condition of selectivity is also fulfilled in their case, in accordance with the case-law cited in paragraph 148 above. 155 It should be noted that aid may be selective for the purposes of Article 87(1) EC even if it concerns a whole economic sector (Italy v Commission, paragraph 136 above, paragraph 95). 156 In the present case, the measure at issue applies to the financial sector. Within that sector, it benefits only the undertakings carrying out the operations covered by that measure. As it does not apply to all economic operators, it cannot be regarded as a general measure of fiscal or economic policy. It is, in fact, an exception to the general tax scheme. The beneficiary managing undertakings derive an indirect benefit from advantages not provided for under the normal rules of that scheme and to which undertakings in the financial sector which do not perform management operations for specialised investment vehicles have no right (see, to that effect, Italy v Commission, paragraph 136 above, paragraphs 96, 97, 99 and 100). The measure at issue is thus also selective in respect of managing undertakings of specialised investment vehicles. 157 That finding is not affected by the fact that certain fund managers may benefit from the advantage afforded by the measure at issue for some of their activities but not for others. The fact nevertheless remains that the measure at issue confers an advantage on them for certain specific activities, whereas other, non-specialised fund managers will not benefit from it. 158 It follows from the foregoing considerations that the second part of this second plea must be rejected. The existence of an indirect selective advantage in favour of listed small- and mid-caps whose shares are held by specialised investment vehicles 159 It is clear from recital 42 of the contested decision that the Commission considers that the measure at issue confers an indirect selective advantage on small- and mid-caps whose shares are held by specialised investment vehicles, consisting in increased demand for their shares and in increased liquidity owing to the enhanced attractiveness of the investment. 160 The applicants dispute that the measure at issue can lead to such increases. Not only does such an assertion lack credibility, given the derisory amount allocated by the Italian Republic to the measure at issue in relation to the large number of companies concerned, it is not proved in the contested decision, either. 161 As to the link which the applicants attempt to establish between the amount allocated to the measure at issue by the Italian authorities and the number of small- and mid-caps, it should be noted that it does not displace the link referred to in the contested decision (recital 42) between the enhanced attractiveness of investment in those companies and their increase in liquidity. 162 It should be noted in that regard that the Italian Republic has argued that the measure at issue is designed to foster the market capitalisation of small- and mid-caps as opposed to other companies listed in Europe (recital 32 of the contested decision). In its rejoinder in the present case, the Commission even reproduced an excerpt from the application of the Italian authorities in Case T-424/05, from which it transpires that the grant of tax reductions to institutional investors having an interest in small- and mid-caps has the effect of mitigating the negative effects of reduced capitalisation on the undertakings’ growth prospects, as large capitalisation favours company growth. Admittedly, the applicants assert that the objective behind the measure at issue was not to increase the liquidity of those small- and mid-caps. They also state, however, that the measure at issue was aimed at prompting investors to diversify their portfolio by acquiring shares in specialised investment vehicles and, correlatively, to encourage fund managers to expand their product range. However, even though the objective of the measure at issue was not that alleged by the Italian Republic, its author, but rather the objective imputed to it by the applicants, the fact remains that, in the eyes of investors, it enhanced the attractiveness of the investments in those companies and that, by increasing demand for their shares, it afforded the latter an advantage. 163 Moreover, the Court has previously held that a measure allowing the undertakings concerned to increase their own resources on more favourable terms may constitute State aid (see, to that effect, Germany v Commission, paragraph 127 above, paragraph 34). A mere increase in liquidity can therefore – contrary to the applicants’ claim – constitute an advantage within the meaning of Article 87(1) EC. 164 Equally unconvincing is the applicants’ argument that SICAVs or fund managers operate according to a logic of maximum profit and not according to whether there might be tax reductions. First of all, there is no conflict between those two rationales, since any tax reductions as a rule increase profit. Secondly, if the measure at issue attains the objective imputed to it by the applicants – namely, to encourage fund managers to expand their product range – then clearly it influences their approach, thus triggering an increase in the demand for shares in small- and mid-caps. 165 Consequently, the Commission is correct in concluding, in recital 42 of the contested decision, that, by favouring investor demand for shares in small- and mid-caps, the measure at issue confers an indirect advantage on those companies. 166 It is apparent, however, from the case-law cited in paragraphs 148 and 149 above, first, that the assessment of the selectivity of a measure necessitates a comparison of the situation of the beneficiary undertakings with that of other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure at issue and, secondly, that a measure which constitutes an advantage does not fulfil the condition of selectivity if it is justified by the nature or general scheme of the system of which it is part. 167 The applicants submit, however, that the situation of listed small- and mid-caps is not comparable to that of larger companies and that, moreover, limiting the measure to the former is not a selective criterion because it is justified by the objective pursued. 168 As to the first argument, it is clear that the applicants have not adduced any evidence to establish the impossibility of comparing the situation of collective investment in small- and mid-caps with that of collective investment in other companies, or even that of individual investments. In particular, the fact that it is precisely large-capitalisation companies which have considerable capitalisation at their disposal and are already heavily present on the markets and in the portfolios of investment vehicles does not by itself preclude their being compared with small- and mid-caps. Moreover, when the applicants argue that the measure at issue is aimed at prompting investors to diversify their investment portfolio and to encourage fund managers to expand their product range, they are implicitly acknowledging that shares in small- and mid-caps and in other companies, such as large- capitalisation companies, are investments and products which may form part of the same portfolio. If the measure at issue is such as to encourage investors to re-establish balance in their portfolio, it is because, in their eyes, investments in small- and mid-caps are comparable with those in other companies and are therefore liable to attract investors provided that they see an advantage in them, such as that afforded them by the measure at issue. 169 As regards the second argument, the Commission examined it in recital 43 of the contested decision. It states in that recital that the tax advantage conferred does not offset any substantial disparity in tax treatment between collective investments in listed small- and mid-caps, on the one hand, and collective investments in other companies and individual investments in non-listed companies, on the other. Nor may the measure at issue be justified by its specific objective because it provides solely for tax reductions in the case of specialised collective investments in shares of small- and mid-caps and, as such, it is not targeted at or proportionate to the aim of promoting the capitalisation of such companies but instead is conditional on the investments being made through specialised investment vehicles. 170 The applicants have not adduced any evidence to support their assertion that the measure at issue is justified by the objective it pursues, which, in their view, is to guarantee that investors diversify their investment portfolio by investing in shares in specialised investment vehicles and, according to the Italian authorities, is to favour the capitalisation of those companies. It should be borne in mind in that regard that, if it were to be considered that a specific measure could escape Article 87(1) EC if it pursued an economic or industrial policy objective, such as the promotion of investment, that provision would have no practical effect. In accordance with settled case-law, it must therefore be held that the objective pursued by the measure at issue cannot enable it to escape being categorised as State aid within the meaning of Article 87(1) EC (Diputación Foral de Álava and Others v Commission, paragraph 152 above, paragraph 51). 171 Lastly, it should be observed that this part of the plea – even if it were well founded – would not be sufficient by itself to entail the annulment of the contested decision, because that decision also covers specialised investment vehicles or their managing undertakings. 172 Accordingly, the fourth part of the second plea is also unfounded, and the second plea must therefore be rejected in its entirety. 3. The third plea: in the alternative, infringement of Article 87(2)(a) EC and Article 88 EC in that the Commission found the measure at issue to be incompatible with the common market Arguments of the parties 173 The applicants put forward the third plea by way of an alternative, should the Court find that the measure at issue constitutes State aid. In their view, the measure at issue satisfies the two conditions laid down in Article 87(2)(a) EC. In the first place, it is a measure having a social character in favour of investors. In the second place, it does not discriminate between domestic and Community financial products. The social character of the measure at issue derives from the fact that it is intended to create a vehicle to enable small savers to acquire shares in companies which would otherwise not be easily accessible to them. 174 In any event, the judgment of the Court of First Instance of 14 December 2005 in Case T‑200/04 Regione autonoma della Sardegna v Commission, not published in the ECR, relied on by the Commission, is not relevant because, in the passage cited, the Court was addressing a plea alleging failure to conduct a proper preliminary investigation. 175 The Commission challenges the applicants’ arguments. Findings of the Court 176 As regards determining, first, whether the recipient of aid can rely on facts and documents which have not been brought to the attention of the Commission prior to the adoption of its decision and, second, whether pleas based on such facts and documents are admissible, it should be borne in mind that, according to settled case‑law, in an action for annulment brought under Article 230 EC, the lawfulness of a Community measure must be assessed on the basis of the information existing at the time when the measure was adopted. In particular, the complex assessments made by the Commission must be examined solely on the basis of the information available to it at the time when the assessments were made. In this respect, the Commission cannot be reproached for not taking into account information which could have been submitted to it during the administrative procedure but which was not, since it is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it (see Case T‑217/02 Ter Lembeek v Commission [2006] ECR II‑4483, paragraphs 82 and 83 and the case-law cited). 177 The Court of First Instance has inferred from this that, where an applicant has participated in the formal investigation procedure provided for in Article 88(2) EC, it may not rely before the Court on factual arguments which are unknown to the Commission and which have not been notified to the latter during the formal investigation procedure. On the other hand, there is nothing to prevent the interested party from raising against the final decision a plea in law not raised at the stage of the administrative procedure (Ter Lembeek v Commission, paragraph 176 above, paragraph 84). 178 Accordingly, the applicants may not, at this stage, rely on factual material of which the Commission was unaware at the time of the adoption of its decision and which the applicants did not notify to the latter during the formal investigation procedure. However, there is nothing to prevent them from relying, in the present action, on infringement of Article 87(2)(a) EC, even though they did not explicitly dispute the assessment set out by the Commission in the initiating decision and relating to the inapplicability of the exceptions provided for in Article 87(2) and (3) EC. 179 In the assessment of the merits of this plea, it should be borne in mind as a preliminary point that, since Article 87(2)(a) EC provides for an exception from the general principle laid down in Article 87(1) EC that State aid is incompatible with the common market, it must be narrowly construed (see, to that effect, Germany v Commission, paragraph 127 above, paragraph 49). 180 In recital 52, the contested decision expressly rules out the applicability of the exception relied on by the applicants. 181 The wording of Article 87(2)(a) EC makes it clear that the application of that exception is conditional upon the aid having a social character, being granted to individual consumers and there being, in that context, no discrimination relating to the origin of the products. 182 However, although it is common ground that the aid was granted without discrimination relating to the origin of the investment vehicles concerned, it is aimed at all categories of investors, whose taxes or charges are reduced. Accordingly, the measure at issue has no social character. The Commission was therefore correct to rule out the application of the exception provided for in Article 87(2)(a) EC. 183 The third plea must therefore be rejected. 4. The fourth plea: in the further alternative, infringement of Article 88 EC and Article 14 of Regulation No 659/1999 in so far as the Commission ordered the recovery of the aid from investment vehicles having corporate form and from undertakings which manage the investment vehicles on a contractual basis Arguments of the parties 184 By this plea, put forward in the further alternative, should the Court not annul the contested decision in its entirety, the applicants seek annulment of the recovery order, in so far as it relates to investment vehicles having corporate form and undertakings which manage the investment vehicles on a contractual basis. 185 According to the applicants, the unlawfulness of the recovery order results, in the first place, from the fact that the actual beneficiaries of the measure at issue are not the same as the persons referred to in the recovery order, namely the specialised Italian SICAVs and the Italian fund managers managing specialised funds. Under Article 88 EC and Article 14 of Regulation No 659/1999, the recovery order may concern only the direct and actual beneficiaries of the aid. As it is, the Commission acknowledged, inter alia, in recital 42 of the contested decision that the only actual beneficiaries of the measure at issue are the investors, with specialised investment vehicles benefiting only indirectly. 186 The applicants submit that it is disproportionate to require the SICAVs and fund managers concerned to pay an amount reflecting the reduction in the substitute tax rate applied to operating result, when the advantage that they obtained consisted in an increase in the fees charged. It is not open to the Commission to require the restitution of an amount which does not correspond to the amount of the advantage which actually accrued to the undertakings. By ordering the restitution of a disproportionate amount, the Commission has infringed Article 14(1) of Regulation No 659/1999, under which ‘the Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law’. The applicants add that they are not arguing that the recovery order is in itself disproportionate. 187 The applicants submit, secondly, that execution of the recovery order would place the specialised Italian SICAVs and the Italian fund managers managing specialised funds in a less favourable position than that in which they would have been had it not been for the measure at issue, since payment of the tax relief equivalent is a charge which they would not otherwise have had to bear. Moreover, they are unable to pass that charge on to investors. The imposition of such an additional charge is therefore contrary to the case-law requiring a return to the status quo ante through recovery of the aid unlawfully paid. 188 Thirdly, the applicants maintain that the Italian authorities are not in a position to enforce the recovery ordered in respect of specialised investment vehicles established in another Member State – be it SICAVs or fund managers managing funds – with the result that the recovery order in question is not only unlawful but also impossible to implement, thereby giving rise to discrimination depending on where the specialised investment vehicles are established. 189 The Commission challenges the applicants’ arguments. Findings of the Court 190 Article 14(1) of Regulation No 659/1999 provides that, where negative decisions are taken in cases of unlawful aid, the Commission is to decide that the Member State concerned is to take all necessary measures to recover the aid from the beneficiary. The Commission is not to require recovery of the aid if this would be contrary to a general principle of Community law. 191 It should be borne in mind that removing unlawful aid by means of recovery is the logical consequence of a finding that the aid is unlawful, the purpose of which is to re-establish the previous situation (Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraph 74, and Case T‑318/00 Freistaat Thüringen v Commission [2005] ECR II‑4179, paragraph 308). 192 The main objective pursued in requiring the repayment of unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage afforded by the unlawful aid (Case C‑277/00 Germany v Commission, paragraph 191 above, paragraph 76; Joined Cases T‑111/01 and T‑133/01 Saxonia Edelmetalle and Others v Commission [2005] ECR II‑1579, paragraph 114; and Freistaat Thüringen v Commission, paragraph 191 above, paragraph 310). 193 Recovery with a view to re-establishing the previously existing situation cannot, in principle, be regarded as disproportionate to the objectives of the Treaty provisions on State aid. By repaying, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (Case C-372/97 Italy v Commission [2004] ECR I‑3679, paragraphs 103 and 104, and Case C-148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 113). 194 With regard to aid of a fiscal nature, the Court of Justice has held that re-establishing the status quo ante means restoring, as far as possible, the situation which would have prevailed if the operations in question had been carried out without the tax reduction. That does not imply reconstructing past events differently on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, since the choices actually made with the benefit of the aid might prove to be irreversible (Unicredito Italiano, paragraph 193 above, paragraphs 117 and 118). 195 It is in the light of those principles that the fourth plea must be examined. 196 Article 3(2) of the contested decision, in the authentic Italian version, requires the Italian Republic to take the necessary measures to recover the aid made unlawfully available to its beneficiaries from the corporate investment vehicles or, as the case may be, from the undertakings managing the contractual investment vehicles, without prejudice to any subsequent recourse under national law. 197 Recital 60 of the contested decision states that the Italian Republic must recover the aid from the investment vehicles or from the undertakings managing contractual investment vehicles that are at the same time the first beneficiaries of the aid and the persons required by tax legislation to pay to the State the substitute tax on their operating result. The aid to be recovered corresponds to the difference between the standard substitute tax and the reduced tax resulting from the tax incentives in question. According to the wording of recital 60, the Commission does not rule out the possibility that the investment vehicles or the undertakings that manage them may claim a corresponding amount from their investors, if such a possibility exists under national law. The Commission adds that it is possible that all or part of the aid granted to individual beneficiaries may fall within the scope of the provisions applicable to de minimis aid. 198 It is clear, first of all, that specialised investment vehicles or the fund managers which manage them are indeed the beneficiaries of the measure at issue – as indicated in paragraphs 127 to 132 and 138 to 146 above – which means that the applicants are incorrect in alleging infringement of Article 88 EC and Article 14 of Regulation No 659/1999 in so far as the contested decision orders the Italian Republic to recover the aid from persons other than those identified as the beneficiaries in the contested decision. On this point, it should be emphasised that neither the Treaty nor Regulation No 659/1999 draws a distinction, for the purposes of the recovery to be carried out by the Member State concerned, according to whether a party is a direct or an indirect beneficiary of the unlawful aid in question. 199 However, the applicants argue that, under the contested decision, the specialised investment vehicles or the fund managers which manage them are required to give back something which is entirely different from the advantage which, according to the Commission, they had derived. They would have to repay an amount corresponding to the tax relief of which they are not the direct beneficiaries, whereas, according to the Commission, their advantage consists in an increase in their entry and management fees. The principle of proportionality is therefore infringed. 200 In that regard, recital 60 of the contested decision indicates that recovery is to be effected from specialised investment vehicles or the fund managers which manage them, both as indirect beneficiaries of the aid and as persons required by tax legislation to pay the substitute tax. 201 In their capacity as taxpayers, the specialised investment vehicles or the fund managers which manage them are the only possible interlocutors for the Italian Republic in the context of proceeding with recovery of the unlawful aid. The restoration of the previous situation, which would have prevailed if the operations in question had been carried out without the tax reduction, accordingly calls for the recovery from those bodies of the difference between the standard tax and the reduced tax resulting from the measure at issue, even though they always have the option of subsequently effecting recovery in turn from their investors or even from the State, in accordance with the provisions of national law. 202 Moreover, given their status as beneficiaries of the unlawful aid in question, the recovery of that aid from the specialised investment vehicles or the fund managers which manage them cannot be regarded as disproportionate in the light of the case-law cited in paragraphs 192 to 194 above. It is in fact the tax relief in question, recovery of which is ordered, which caused a distortion of competition in favour of the specialised investment vehicles or the undertakings managing them in relation to other investment vehicles. 203 The argument that, once recovery has been carried out, the specialised investment vehicles and the fund managers which manage them will find themselves in a less favourable position than if they had not benefited from the measure at issue must also be rejected. It would not be right to determine the amounts to be repaid in the light of various operations which could have been implemented by the undertakings if they had not opted for the type of operation which was coupled with the aid (Unicredito Italiano, paragraph 193 above, paragraph 114). 204 Secondly, in any event, it should be noted that even if the practical difficulties referred to by the applicants were genuine, they would not be such as to call into question the validity of the recovery order, which concerns, without discrimination, all the specialised investment vehicles or the companies which manage them. 205 The present plea must therefore be rejected and, in consequence, the action must be dismissed in its entirety. Costs 206 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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the action. 2. Orders the applicants to pay the costs. Vilaras Dehousse Šváby Delivered in open court in Luxembourg on 4 March 2009. [Signatures] Table of contents Background to the dispute Measure at issue Administrative procedure The contested decision Procedure and forms of order sought Admissibility Arguments of the parties Findings of the Court Substance 1. The first plea: infringement of Article 253 EC, read in conjunction with Article 88 EC, on grounds of the contradictory and insufficient statement of reasons for the contested decision Arguments of the parties Findings of the Court The first part of the first plea: reasons given for the finding of a selective advantage The second part of the first plea: failure to state reasons for the finding of a distortion of competition which may affect trade between Member States 2. The second plea: infringement of Article 87(1) EC in so far as the measure at issue does not constitute State aid Arguments of the parties Findings of the Court The identification of the beneficiaries of the measure at issue and their categorisation as undertakings The existence of a selective advantage in favour of the specialised investment vehicles or of the undertakings which manage them The existence of an indirect selective advantage in favour of listed small- and mid-caps whose shares are held by specialised investment vehicles 3. The third plea: in the alternative, infringement of Article 87(2)(a) EC and Article 88 EC in that the Commission found the measure at issue to be incompatible with the common market Arguments of the parties Findings of the Court 4. The fourth plea: in the further alternative, infringement of Article 88 EC and Article 14 of Regulation No 659/1999 in so far as the Commission ordered the recovery of the aid from investment vehicles having corporate form and from undertakings which manage the investment vehicles on a contractual basis Arguments of the parties Findings of the Court Costs * Language of the case: Italian.