Order — ECLI:EU:T:1996:205
Date: 1996-12-17
Language of the case: Italian
Court formation: President of the Chamber
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition;Steel industry;ECSC matters
Concepts: Ancillary procedures and applications
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Italy

Summary of the Judgment 
1. Plea of illegality — Measures in respect of which a plea of illegality may be raised — 
General ECSC decision forming the basis of the individual decision contested 
(ECSC Treaty, Arts 33, second para., and 36, third para.) 
2. ECSC — Steel aid — Prohibited — Whether conditionally prohibited — Prejudicial to 
competition — No such condition 
(ECSC Treaty, Arts 4(c) and 95) 
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SUMMARY — JOINED CASES T-164/96, T-165/96, Τ-166/96, Τ-167/96, Τ-122/97 AND Τ-130/97 
3. EC5C Treaty — Steel aid — Authorisation by the Commission — Aid for closure — 
Conditions — Discretion of the Commission — Regular production 
(ECSC Treaty, Arts 4(c) and 95; Commission Decision No 3855/91/ECSC) 
4. ECSC — Steel aid — Authorisation by the Commission — Principle of non-discrimi­
nation — Breach — Conditions 
(Commission Decision No 3855/91/ECSC, Art. 4(2)) 
5. ECSC — Steel aid — General aid scheme approved by the Commission — Definition 
of the criteria for its application — Whether individual aid is covered by the 
approval — Investigation by the Commission — Assessment in the light of the general 
scheme and the conditions laid down in the decision approving it 
(ECSC Treaty, Arts 5 and 15) 
6. Acts of the institutions — Statement of reasons — Obligation — Scope — ECSC 
decision 
(ECSC Treaty, Arts 5 and 15) 
1. Where a Commission decision finding 
that aid is incompatible with the com­
mon market for the purposes of Arti­
cle 4(c) of the ECSC Treaty produces 
legal effects of its own, including the 
definitive refusal of the aid, the recipi­
ent undertaking must have a means of 
redress. This means that it must be able 
to rely, in support of an action for 
annulment, on the illegality of any 
general decision on which the con­
tested decision is based, irrespective of 
whether or not it has challenged the 
decision to initiate the procedure for 
examining the disputed aid. 
2. The system set up by Article 4(c) of the 
ECSC Treaty thus differs from that 
under Article 92(1) of the EC Treaty 
(now, after amendment, Article 87(1) 
EC). The former imposes a general and 
unconditional prohibition on all aid, 
which is in substance contrary to the 
very conditions in which the common 
market in coal and steel was estab­
lished. The latter, on the other hand, 
only prohibits aid where it is such as to 
distort or threaten to distort competi­
tion by favouring certain undertakings 
or the production of certain goods. 
It follows that aid for closure granted 
by a Member State to a steel under­
taking falls within the prohibition in 
Article 4(c) of the ECSC Treaty, with­
out there being any need to establish 
that the conditions of competition have 
in fact been undermined. 
3. Under Article 4(c) of the Treaty, all aid 
for steel from the Member States in any 
form whatsoever is prohibited. Dero­
gations from that prohibition, such as 
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MOCCIA IRME AND OTHERS V COMMISSION 
the Fifth Steel Aid Code, adopted on 
the basis of Article 95 of the Treaty, 
must be interpreted strictly. 
Having regard to the generally applic­
able prohibition on aid laid down by 
Article 4(c) of the ECSC Treaty and to 
the exceptional and limited nature of 
the derogations allowed, the Commis­
sion was entitled to consider (in the 
Fifth Steel Aid Code authorising aid in 
favour of undertakings which defini­
tively cease their production of steel), 
in exercising its discretion and without 
manifestly misconstruing the law or 
misusing its powers, that aid for clo­
sure must have significant effects on 
the market and therefore should only 
be granted to undertakings which, 
whilst less competitive, have none the 
less produced on a regular basis within 
the meaning of Article 4(2) of the Fifth 
Code. Moreover, the Commission may, 
in a later decision, lay down the 
conditions for implementing that pro­
vision. 
4. For the Commission to be found in 
breach of the principle of non-discri­
mination, it must be shown to have 
treated like cases differently, thereby 
placing some traders at a disadvantage 
by comparison with others, without 
such differentiation being justified by 
the existence of substantial objective 
differences. 
In the context of steel aid, it is therefore 
necessary to consider whether or not 
the difference in treatment as between 
undertakings is based on the existence 
of objective and substantial differences 
having regard to the aims which the 
Commission may lawfully pursue as 
part of its industrial policy in the 
European steel industry. 
5. Whilst the second indent of Article 4(2) 
of the Fifth Steel Aid Code lays down 
the requirement of regular production, 
it does not define that requirement. It 
follows that the Commission, in 
approving a general aid scheme noti­
fied by a Member State, is of necessity 
bound to define in abstract terms the 
criteria for the application of that 
requirement so as to enable it then to 
make a uniform and predictable assess­
ment of individual requests for aid 
notified under Article 6(6) of the Fifth 
Code, in compliance with the princi­
ples of legal certainty and protection of 
legitimate expectations. 
Once the criteria have been specified 
and the general scheme has been 
approved, the Commission must, when 
aid granted on the basis of the pre­
viously authorised scheme is notified, 
confine itself to checking that the aid is 
covered by the general scheme and 
satisfies the conditions laid down in 
the decision approving it. Were it not to 
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SUMMARY — JOINED CASES T-164/96, T-165/96, Τ-166/96, Τ-167/96, Τ-122/97 AND Τ-130/97 
take that approach, the Commission 
could, whenever it examined any indi­
vidual cases notified, reconsider its 
decision approving the general aid 
scheme. This would jeopardise the 
principles of legal certainty and the 
protection of legitimate expectations 
from the point of view of both the 
Member States and traders since indi­
vidual aid in conformity with the 
decision approving the general aid 
scheme could thus at any time be called 
in question by the Commission in 
breach of those principles. 
6. The requirement of a statement of 
reasons laid down by Articles 5 and 
15 of the ECSC Treaty must be assessed 
in the light of the circumstances of the 
case, in particular the content of the 
measure, the nature of the reasons 
relied upon and the interest which the 
addressees or other persons concerned 
by the measure, for the purposes of the 
second paragraph of Article 33 of the 
Treaty, may have in obtaining an 
explanation. In the case of a measure 
which is intended to be of general 
application, the requirements laid 
down in Articles 5 and 15 oblige the 
Commission to mention, when stating 
the reasons on which its decision is 
based, the situation as a whole which 
led to the adoption of the decision and 
the general objectives which it seeks to 
attain. 
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