Opinion of the Advocate General — ECLI:EU:C:2003:476
Date: 2003-09-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 1. State aid – Prohibition – Derogations – Information from the Commission concerning the guidelines on State aid to small and medium-sized enterprises – Definition of ‘small and medium-sized enterprises’ – Interpretation of the independence criterion (Commission Recommendation 96/280 concerning the definition of small and medium-sized enterprises; Information from the Commission – Community guidelines on State aid to small and medium-sized enterprises) 2. State aid – Compatibility of aid with Community rules – Possibility of legitimate expectation on the part of recipients – Protection – Conditions and limits (Art. 88 EC) 1. The Commission is bound by the guidelines and notices that it issues in the area of supervision of State aid where they do not depart from the rules in the Treaty and are accepted by the Member States. In that connection, point 1.2 of Information from the Commission – Community guidelines on State aid to small and medium-sized enterprises (SMEs), published in 1996, states that the favourable consideration given by the Commission to such aid is justified by the imperfections in the market which lead to their having to suffer a number of handicaps and which thus limit the socially and economically desirable development of such enterprises. Point 3.2 of those Guidelines states that, in order to qualify as an SME under those guidelines, an enterprise must satisfy three tests: number of persons employed, the financial test and the independence test. Regarding the last test, Article 1(3) of the Annex to Commission Recommendation 96/280 concerning the definition of SMEs defines independent enterprises as those which are not owned as to 25% or more of the capital or the voting rights by one enterprise, or jointly by several enterprises, falling outside the definition of an SME or a small enterprise. However, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption. The 18th, 19th and 22nd recitals of that recommendation, as well as point 3.2 of the SME Guidelines, make it clear that the purpose of the independence criterion is to ensure that the measures intended for SMEs genuinely benefit the enterprises for which size represents a handicap and not enterprises belonging to a large group which have access to funds and assistance not available to competitors of equal size. It also follows that, in order to ensure that only genuinely independent SMEs are included, there has to be a way of eliminating legal arrangements in which SMEs form an economic group much stronger than such an SME. It must also be ensured that the definition is not circumvented on formal grounds. Accordingly, the independence criterion must be interpreted in the light of that purpose, so that an enterprise which is owned as to less than 25% by a large enterprise and thus formally meets the criterion, but in reality belongs to a large group of enterprises, may not nevertheless be regarded as meeting the criterion. (see paras 45-51) 2. In view of the mandatory nature of the supervision of State aid by the Commission under Article 88 EC, undertakings to which aid has been granted cannot, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article. It follows that, so long as the Commission has not taken a decision approving aid and also so long as the period for bringing an action against such a decision has not expired, the recipient cannot be certain as to the lawfulness of the proposed aid which alone is capable of giving rise to a legitimate expectation on his part. (see paras 65-66)