Judgment — ECLI:EU:T:2000:289
Date: 2000-12-12
Language of the case: Italian
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Concepts: Statement of reasons;General;Private investor/private creditor test;Limitation periods
Procedure: Action for annulment - successful
Origin: Italy

Summary of the Judgment 
1. Actions for annulment — Time-limits — Starting point — Day on which a measure 
came to the knowledge of the applicant — Subsidiary nature — Date of publication 
(EC Treaty, Art. 93(2) (now Art. 88(2) EC), and Art. 173, fifth para, (now, after 
amendment, Art. 230 EC, fifth para.)) 
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SUMMARY — CASE T-296/97 
2. State aid — Definition — Private investor test — Financial assistance from public 
funds granted to an undertaking at the same time as a significant capital contribution 
on the part of a private investor made in comparable circumstances — Employees' 
participation in the undertaking's capital 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
3. Actions for annulment —· Contested measure — Assessment of legality on the basis of 
the information available at the time of adoption of the measure 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 
4. State aid — Definition — Private investor test — Commission's power of assess­
ment —· judicial review — Limits 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
5. State aid — Commission decision declaring aid incompatible with the common 
market — Obligation to state reasons — Scope —· Reply to the essential arguments 
of the recipient of the aid — Argument seeking to distinguish the situation of the 
recipient of the aid from that forming the subject-matter of the only precedent for the 
Commission's practice when taking decisions 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93(2) and 190 (now 
Arts 88(2) EC and 253 EC)) 
1. According to the actual wording of the 
fifth paragraph of Article 173 of the 
Treaty (now, after amendment, the fifth 
paragraph of Article 230 EC), the cri­
terion of the day on which a measure 
came to the knowledge of an applicant, 
as the starting point for the period 
prescribed for instituting proceedings, 
is subsidiary to the criteria of publica­
tion or notification of the measure. 
Since the contested decision, which was 
not notified to the applicant, was 
published, it is the date of publication 
that started the period running. 
(see paras 61, 63) 
2. A capital contribution from public 
funds satisfies the test of a private 
investor operating in the normal con­
ditions of a market economy and does 
not imply the grant of State aid if, inter 
alia, it was made at the same time as a 
significant capital contribution on the 
part of a private investor made in 
comparable circumstances. 
The employees' participation in an 
undertaking's capital, in the form of 
consent to a change in salary in return 
for shares in the undertaking corres­
ponding to the annual saving in labour 
costs, does not in itself show that the 
capital contribution in the form of 
public funds satisfies the private in­
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ALITALIA V COMMISSION 
vestor test. The conduct of a private 
investor in a market economy is guided 
by prospects of profitability, whereas 
such participation on the part of 
employees is motivated by the desire 
to keep their jobs and therefore, above 
all, by considerations pertaining to the 
undertaking's viability and survival 
rather than by prospects of profitabil­
ity. 
(see paras 81-84) 
3. In the context of an action for annul­
ment under Article 173 of the Treaty 
(now, after amendment, Article 230 
EC), the legality of a Community 
measure must be assessed on the basis 
of the elements of fact and of law 
existing at the time when the measure 
was adopted. In particular, the com­
plex assessments made by the Commis­
sion must be examined solely on the 
basis of the information available to 
the Commission at the time when those 
assessments were made. 
(see para. 86) 
4. The assessment by the Commission of 
the question whether an investment 
satisfies the private investor test 
involves a complex economic app­
raisal. When the Commission adopts a 
measure involving such a complex 
economic appraisal, it enjoys a wide 
discretion and judicial review of that 
measure, even though it is in principle a 
'comprehensive' review as to whether a 
measure falls within the scope of Art­
icle 92(1) of the Treaty (now Art­
icle 87(1) EC), is limited to verifying 
whether the Commission complied 
with the relevant rules governing pro­
cedure and the statement of reasons, 
whether the facts on which the con­
tested finding was based have been 
accurately stated and whether there has 
been any manifest error of assessment 
or a misuse of powers. In particular, the 
Court is not entitled to substitute its 
own economic assessment for that of 
the author of the decision. 
(see para. 105) 
5. Even though the Commission is not 
required to answer all the arguments 
put forward during the administrative 
procedure by a company which, as a 
beneficiary of the contested aid meas­
ure, is an interested party for the 
purposes of Article 93(2) of the Treaty 
(now Article 88(2) EC), it is none the 
less required to provide in its decision 
an adequate statement of the reasons 
why the essential arguments of such a 
party cannot be upheld. 
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SUMMARY — CASE T-296/97 
Therefore, having regard to the fact 
that a decision was the only precedent 
for the Commission's practice when 
taking decisions on the calculation of 
the minimum rate for an investment by 
the public authorities in an airline, it 
must be held that the interested party's 
argument that its situation must be 
distinguished from that of the company 
in respect of which the previous de­
cision was taken formed an essential 
part of its case that the investment 
from public funds satisfied the private 
investor test. In those circumstances, 
the Commission was required to 
answer that argument in the contested 
decision, failing which it failed to fulfil 
its obligation to state reasons. 
(see para. 132) 
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