Judgment — ECLI:EU:T:1999:335
Date: 1999-12-16
Language of the case: Italian
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition;Steel industry;ECSC matters
Concepts: Investments and financial aid;Principle of the protection of legitimate expectations;Pleas in law;Principle of proportionality
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. ECSC — Steel aid — Administrative proceedings — Right of the aid recipient to a fair 
hearing — Limits 
(General Decision No 3855/91, Art. 6(4)) 
2. ECSC — Steel aid — May be authorised by the Commission — Conditions — Must be 
notified — Where aid has not been notified in good time — Effects 
(ECSC Treaty, Art. 4(c); General Decisions Nos 257/80, 3484/85, 3855/91 and 
2496/96) 
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SUMMARY — CASE T-158/96 
3. ECSC — Steel aid — Recovery of unlawful aid — Legitimate expectations on the part 
of the recipients — Protection — Conditions and limits 
4. ECSC — Steel aid — Recovery of unlawful aid — Whether in breach of the principle 
of proportionality — No such breach — Application of interest — Permissible — Date 
from which interest may be calculated — Fixed as the date on which aid was paid — 
Permissible 
5. ECSC — Steel aid — Prohibited — Conditions — Interference with the conditions of 
competition — Need not be established 
(ECSC Treaty, Art. 4(a), (b) and (c)) 
6. Actions for annulment — Commission decisions or recommendations under the ECSC 
Treaty — Evaluation of the situation, resulting from economic facts or circum­
stances — Judicial review — Limits — Misuse of power — Where the Commission has 
clearly disregarded provisions of the Treaty or any rule of law relating to its application 
(ECSC Treaty, Art. 33, first para.) 
7. ECSC — Steel aid — May be authorised by the Commission — Assessment to be 
made — Must refer to the Community context — Investments in research and 
development 
(ECSC Treaty, Art. 4(c)) 
8. ECSC — Steel aid — Recovery of unlawful aid — Application of national law — 
Conditions and limits — Payment of interest justified by the need to restore the 
previous situation 
1. In the context of the ECSC Treaty, 
administrative proceedings regarding 
State aid are opened only against the 
Member State concerned, the recipient 
of the aid being considered to be only 
an 'interested party' in that connection. 
It does not follow either from the 
wording of Article 6(4) of the Fifth 
Steel Aid Code or from any other 
provision regarding State aid or from 
Community case-law that the Commis­
sion is required to hear the recipient's 
views on the Commission's legal assess­
ment of the aid in question. Not having 
the same rights to a fair hearing as 
those which individuals against whom 
a proceeding has been instituted are 
recognised as having, the recipient has 
only the right to be involved in the 
administrative proceeding to the extent 
appropriate in the light of the circum­
stances of the case. 
2. Unlike the provisions of the EC Treaty 
on State aid, which empower the 
Commission on a permanent basis to 
adopt decisions on its compatibility 
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ACCIAIERIE DI BOLZANO V COMMISSION 
with the common market, the deroga­
tions laid down in the Steel Aid Codes 
to the principle of the absolute prohi­
bition of aid in Article 4(c) of the 
ECSC Treaty can be granted only 
during a period which those Codes 
determine. Thus, once the period of 
applicability of a Code has expired, the 
Commission is no longer empowered 
to authorise aid to the steel industry 
under the derogations provided if that 
aid has not been notified in accordance 
with that Code. 
In cases where the aid has not been 
notified, the Member State which has 
disregarded its obligation to notify aid 
cannot demand that the Commission 
verify its compatibility with the com­
mon market in the light of an expired 
Code. Similarly, such a State, having 
failed to comply with the conditions 
laid down by the Code, is not justified 
in pleading the principle of legal cer­
tainty in order to benefit from the 
derogations set out therein. 
3. Undertakings in receipt of State aid 
cannot entertain a legitimate expecta­
tion that the aid is lawful unless it has 
been granted in compliance with the 
procedure, as a diligent operator 
should be able to ascertain. Only in 
exceptional circumstances can recipi­
ents of unlawful aid assert a legitimate 
assumption as to the lawfulness of aid 
in reliance on this principle. 
4. The principle of proportionality 
requires that the measures adopted by 
Community institutions must not 
exceed what is appropriate and neces­
sary for attaining the objective pur­
sued; where there is a choice between 
several appropriate measures, the least 
onerous measure must be used. 
Since the withdrawal of unlawful aid 
by way of recovery is the logical 
consequence of the finding that it is 
unlawful, such a measure cannot in 
principle be regarded as disproportion­
ate to the objectives of the ECSC 
Treaty in regard to State aid. It also 
follows that such a measure, even if it is 
applied long after the aid was granted, 
cannot constitute a penalty for which 
Community law does not provide. 
Since the ECSC Treaty would be ren­
dered ineffective if recipient undertak­
ings were permitted to benefit from the 
availability of the money during the 
period between the granting and the 
actual recovery of the aid, a decision of 
the Commission ordering the recovery 
of illegal aid may legitimately require 
interest to be recovered on the sums 
granted in order to eliminate any 
financial advantages incidental to such 
aid. 
Moreover, as regards the fixing of the 
date from which that interest is to be 
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SUMMARY — CASE T-158/96 
calculated, it must be noted that such 
interest is equivalent to the financial 
advantage arising from the availability 
of the funds in question, free of charge, 
over a given period. Consequently, the 
Commission is entitled to consider that 
such interest should start to run from 
the date on which the aid was paid. 
5. Aid covered by the ECSC Treaty is 
deemed incompatible with the common 
market without there being any need to 
establish or even to consider whether 
there is, in actual fact, any interference 
with the conditions of competition or 
whether such interference is liable to 
occur. It follows that if the Commission 
considers that the aid in question 
comes within the scope of the ECSC 
Treaty without having previously ascer­
tained whether it has an 'effect on 
Community trade', it commits no error 
of law. 
6. In exercising its jurisdiction to hear and 
determine actions for annulment of 
decisions or recommendations of the 
Commission, the Community judica­
ture may not, pursuant to the second 
sentence of Article 33(1) of the ECSC 
Treaty, examine the evaluation of the 
situation, resulting from economic 
facts or circumstances, in the light of 
which the Commission took its deci­
sions or made its recommendations, 
save where the Commission is charged 
with having misused its powers or 
manifestly failed to comply with the 
provisions of the Treaty or any rule of 
law relating to its application. 
In order to establish that the Commis­
sion manifestly infringed the provisions 
of the ECSC Treaty or an aid Code in 
such a way as to justify annulment of 
the contested decision, the evidence 
adduced by the applicant must be 
sufficient to render the factual assess­
ment in the decision implausible. 
7. The granting of exemptions from Arti­
cle 4(c) of the ECSC Treaty presup­
poses an examination entailing assess­
ments to be made by the Commission 
in a Community context. The fact that 
expenditure on the purchase of equip­
ment is shown in the aid recipient's 
balance sheet in accordance with 
national legislation and is described 
there as investment in research and 
development, or in other areas, does 
not demonstrate, in itself, that the aid 
in question is capable of qualifying for 
exemption under the ECSC Treaty. 
8. In the absence of provisions of Com­
munity law governing the recovery of 
amounts unduly paid, the recovery of 
aid improperly granted must be carried 
out in accordance with the rules and 
procedures laid down by national law. 
However, the application of national 
law must not undermine the scope and 
effectiveness of Community law. In 
other words, the application of the 
national provisions must not make it 
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ACCIAIERIE DI BOLZANO V COMMISSION 
impossible in practice to recover the 
sums improperly granted or be discri­
minatory in relation to comparable 
cases which are governed solely by 
national legislation. 
Moreover, the purpose of the recovery 
of State aid that is incompatible with 
the common market is to restore the 
previous situation, which presupposes 
that all of the financial advantages 
resulting from the aid which adversely 
affect competition in the common 
market have been eliminated. A deci­
sion of the Commission ordering the 
recovery of unlawful aid may therefore 
also require interest to be recovered on 
the sums granted in order to eliminate 
any financial advantages incidental to 
such aid. 
To refrain from claiming, in addition to 
the recovery of the aid, the payment of 
interest on the sums unlawfully 
granted, would be tantamount to 
enabling the undertaking in receipt of 
those sums to retain financial advan­
tages resulting from the grant of the 
unlawful aid in the form of an interest-
free loan. That in itself would therefore 
constitute aid which would distort, or 
threaten to distort, competition. 
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