Judgment — ECLI:EU:T:2000:223
Date: 2000-09-29
Language of the case: Spanish
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;Applications by natural or legal persons;Notification and obligation to suspend payment of the aid;Principle of the protection of legitimate expectations;General;Commission decision following the formal investigation procedure;Damage to competition and effect on trade;Principle of proportionality;Beneficiaries of the aid to be recovered;Selective nature of the measure
Procedure: Action for annulment - unfounded
Origin: Spain

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and individual 
concern to them — Decision on State aid — Action brought by an association 
representing the collective interests of undertakings in the sector concerned — 
Admissibility — Conditions 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 
2. State aid — Concept — Selective nature of the measure — Objective criteria for 
grant — No effect 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
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SUMMARY — CASE T-55/99 
3. State aid — Effect on trade between Member States — Adverse effect on competi­
tion — Criteria for assessment — Operating aid 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
4. State aid — Concept — Measure not placing recipients in a position as favourable as 
that of their competitors from other Member States — Inclusion 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
5. State aid — Effect on trade between Member States — Criteria — Adverse effect on 
competition — Undertaking in receipt of the aid not participating in cross-border 
activities 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
6. State aid — Effect on trade between Member States — Adverse effect on competi­
tion — Aid relatively small in amount 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
7. State aid — Commission decision finding aid which has not been notified incompatible 
with the common market — Obligation to state reasons — Scope 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC), Arts 93(3) and 190 (now 
Arts 88(3) EC and 253 EC)) 
8. State aid — Recovery of illegal aid — Aid granted in breach of Article 93 of the Treaty 
(now Article 88 EC) — Possible legitimate expectation on the part of the recipient — 
Protection — Conditions and limits 
(EC Treaty, Art. 93 (now Art. 88 EC)) 
9. State aid — Recovery of illegal aid — Discretion of the Commission — Infringement 
of the principle of proportionality — Absence 
(EC Treaty, Art. 93(2), first subpara. (now Art. 88(2) EC, first subpara.)) 
10. State aid— Proposed aid— Implementation before the final decision of the 
Commission — Commission decision ordering repayment of the aid — Obligation 
to state reasons — Scope 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
1. An association responsible for protect­
ing the collective interests of under­
takings is as a matter of principle 
entitled to bring an action for annul­
ment of a final decision of the Com­
mission on State aid only where the 
undertakings in question are also enti­
tled to do so individually or where it is 
able to rely on a particular interest in 
acting, especially because its negotiat-
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CETM V COMMISSION 
ing position is affected by the measure 
which it seeks to have annulled. 
(see para. 23) 
2. The specific nature of a State measure, 
namely its selective application, consti­
tutes one of the characteristics of State 
aid within the meaning of Article 92( 1 ) 
of the Treaty (now, after amendment, 
Article 87(1) EC). In that regard, it is 
necessary to determine whether or not 
the measure in question entails advan­
tages accruing exclusively to certain 
undertakings or certain sectors of activ­
ity. 
The fact that aid is not aimed at one or 
more specific recipients defined in 
advance, but that it is subject to a 
series of objective criteria pursuant to 
which it may be granted, within the 
framework of a predetermined overall 
budget allocation, to an indefinite 
number of beneficiaries who are not 
initially individually identified, cannot 
suffice to call in question the selective 
nature of the measure and, accordingly, 
its classification as State aid within the 
meaning of Article 92( 1 ) of the Treaty. 
In particular, a measure which was 
intended to, and did in fact, benefit, 
among users of commercial vehicles, 
only natural persons, small and med­
ium undertakings, local and regional 
public bodies and bodies providing 
local public services, other users of 
vehicles of that type, namely large 
undertakings, not being eligible, must 
be regarded as selective, and therefore 
specific, for the purposes of Arti­
cle 92( 1 ) of the Treaty. 
Furthermore, it is not sufficient for the 
public authorities to invoke the legiti­
macy of the objectives which the adop­
tion of an aid measure sought to attain 
for that measure to be regarded as a 
general measure outside the scope of 
Article 92(1) of the Treaty. That provi­
sion does not distinguish between mea­
sures by reference to their causes or 
aims but defines them in relation to 
their effects. Accordingly, the sole cir­
cumstance that the measure was aimed 
at modernising the commercial vehicles 
on the road in a Member State in the 
interest of environmental protection 
and improving road safety cannot suf­
fice for that measure to be regarded as 
constituting a system or a general 
measure. 
(see paras 39-40, 47, 53) 
3. Operating aid, which is intended to 
relieve the recipient undertakings of all 
or part of the expenses which they 
would normally have had to bear in 
their day-to-day management or their 
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SUMMARY — CASE T-55/99 
usual activities, in principle distorts 
competition. 
(see para. 83) 
4. A public scheme cannot escape classi­
fication as aid for the purposes of 
Article 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC) on the 
ground that, notwithstanding the 
advantage conferred on its benefici­
aries, they would not, even so, be 
placed in a position as favourable as 
that of their competitors from other 
Member States. 
(see para. 85) 
5. When State financial aid or aid from 
State resources strengthens the position 
of an undertaking compared with other 
undertakings competing in intra-Com-
munity trade, the latter must be regar­
ded as affected by that aid. 
Furthermore, an aid may be of such a 
kind as to affect trade between Mem­
ber States and distort competition even 
if the recipient undertaking, which is in 
competition with undertakings from 
other Member States, does not itself 
participate in crossborder activities. 
Where a Member State grants aid to 
an undertaking, internal supply may be 
maintained or increased, with the con­
sequence that the opportunities for 
undertakings established in other 
Member States to offer their services 
to the market of that Member State are 
reduced. 
(see para. 86) 
6. The prohibition in Article 92(1) of the 
Treaty (now, after amendment, Arti­
cle 87(1) EC) applies to any aid which 
distorts or threatens to distort compe­
tition, irrespective of the amount, in so 
far as it affects trade between Member 
States. In that regard, the relatively 
small amount of aid or the relatively 
small size of the undertaking which 
receives it does not as such exclude the 
possibility that intra-Community trade 
might be affected. Thus, aid of a 
relatively small amount is liable to 
affect trade between Member States 
where there is strong competition in 
the sector in question. 
In that regard, there is no requirement 
in case-law that the distortion of com­
petition, or the threat of such distor­
tion, and the effect on intra-Commu-
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CETM V COMMISSION 
nity trade, must be significant or sub­
stantial. 
(see paras 92, 94) 
7. While in certain cases the very circum­
stances in which the aid has been 
granted may show that it is liable to 
affect trade between Member States 
and to distort or threaten to distort 
competition, the Commission must at 
least set out those circumstances in the 
statement of the reasons for its deci­
sion. 
However, the Commission is not 
required to carry out an economic 
analysis of the actual situation on the 
relevant market, of the market share of 
the undertakings in receipt of the aid, 
of the position of competing undertak­
ings and of trade flows of the services 
in question between Member States, 
provided that is has explained how the 
aid in question distorted competition 
and affected trade between Member 
States. 
Furthermore, in the case of aid granted 
illegally, the Commission is not 
required to demonstrate the actual 
effect which that aid has had on 
competition and on trade between 
Member States. Such an obligation 
would ultimately favour Member 
States which pay aid without comply­
ing with the duty to notify the aid laid 
down in Article 93(3) of the Treaty 
(now Article 88(3) EC), to the detri­
ment of those which notify the aid at 
the proposal stage. Last, in giving its 
reasons for the decisions it is required 
to take in order to ensure compliance 
with the rules on competition, the 
Commission is not obliged to adopt a 
position on all the arguments relied on 
by the parties concerned. It is sufficient 
if it sets out the facts and legal con­
siderations having decisive importance 
in the context of the decision. 
(see paras 100, 102-105) 
8. In view of the mandatory nature of the 
supervision of State aid by the Com­
mission under Article 93 of the Treaty 
(now Article 88 EC), an undertaking 
cannot, in principle, entertain a legit­
imate expectation that the aid is lawful 
unless it has been granted in compli­
ance with the procedure laid down in 
that article. A diligent operator should 
normally be able to determine whether 
that procedure has been followed. 
The possibility cannot be precluded 
that the recipient of illegal aid may, in 
order to challenge its repayment, plead 
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SUMMARY — CASE T-55/99 
exceptional circumstances which give 
rise to a legitimate expectation that the 
aid was lawful. 
(see paras 121-122) 
9. When the Commission finds that State 
aid is incompatible with the common 
market it may order the Member State 
concerned to order the recipients to 
repay it, since abolishing unlawful aid 
by means of recovery is the logical 
consequence of that finding, in so far as 
it allows the previously existing situa­
tion to be restored. 
Save in exceptional circumstances, the 
Commission will not exceed the 
bounds of its discretion if it asks the 
Member State to recover the sums 
granted by way of unlawful aid since 
it is only restoring the previous situa­
tion. 
Similarly, provided that the aim is to 
restore the previous situation, the 
recovery of unlawful aid cannot in 
principle be regarded as disproportion­
ate to the objectives of the Treaty in 
regard to State aid. Even if such a 
measure is implemented long after the 
aid in question was granted, it cannot 
constitute a penalty not provided for by 
Community law. 
(see paras 160-161, 164) 
10. In the matter of State aid, where, 
contrary to the provisions of Arti­
cle 93(3) of the Treaty (now Arti­
cle 88(3) EC), the proposed aid has 
already been granted, the Commission, 
which has the power to require the 
national authorities to order its repay­
ment, is not obliged to provide specific 
reasons in order to justify the exercise 
of that power. 
(see para. 172) 
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