Order — ECLI:EU:C:2002:260
Date: 2002-04-25
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;Appeals;General
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary of the Order 
1. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — 
Review by the Court of justice of the assessment of the evidence before the Court of 
First Instance — Excluded unless the sense of the evidence has been distorted 
(ECSC Statute of the Court of Justice, Art. 51(1)) 
2. ECSC — Aid to the steel industry — Definition — Private investor test — Pros­
pects of profitability 
(ECSC Treaty, Art. 4(c); General Decision No 3855/91, Art. 1(2» 
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3. ECSC — Aid to the steel industry — Commission decision requiring a complex 
economic assessment — Judicial review — Limits 
(ECSC Treaty, Arts 4(c) and 33) 
4. Appeals — Pleas in law — Mere repetition of pleas in law and arguments submitted 
to the Court of First Instance — Inadmissible — Appeal dismissed 
(ECSC Statute of the Court of Justice, Art. 49; Rules of Procedure of the Court of 
justice, Art. 112(1)'(c)) 
5. ECSC — Aid to the steel industry — Recovery of unlawful aid — Restoration of the 
previous situation 
(ECSC Treaty, Art. 4(c)) 
1. The Court of First Instance has exclus­
ive jurisdiction to find the facts, save 
where a substantive inaccuracy in its 
findings is attributable to the docu­
ments submitted to it, and to appraise 
those facts. That appraisal thus does 
not therefore, save where the clear 
sense of the evidence has been dis­
torted, constitute a point of law which 
is subject, as such, to review by the 
Court of Justice on appeal. 
(see para. 34) 
2. In order to determine whether invest­
ment by the public authorities in the 
capital of an undertaking, in whatever 
form, is in the nature of State aid, it is 
necessary to consider whether in simi­
lar circumstances a private investor of 
comparable size with the bodies gov­
erning the public sector might have 
provided injections of capital of such 
an amount. Although the conduct of a 
private investor, with which the inter­
vention of a public investor pursuing 
economic policy aims must be com­
pared, need not be the conduct of an 
ordinary investor laying out capital 
with a view to realising a profit in the 
relatively short term, it must at least be 
the conduct of a private holding com­
pany or a private group of undertak­
ings pursuing a structural policy —• 
whether general or sectoral — and 
guided by prospects of profitability in 
the longer term. 
(see para. 42) 
3. The Commission's examination of the 
question whether a given measure may 
be classified as State aid because the 
State did not act as an ordinary econ­
omic operator involves a complex 
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DSG v COMMISSION 
economic assessment. Where it adopts 
a measure involving such assessments, 
the Commission has a wide discretion, 
and review of that measure by the 
courts must therefore be limited, as 
Article 33 of the ECSC Treaty shows, 
to checking that the rules of procedure 
and on the statement of reasons have 
been complied with, that the facts 
relied on in making the contested 
decision are accurate, and that there 
has been no obvious error in assessing 
those facts or any misuse of powers. In 
particular, the Court of First Instance 
must not substitute its own economic 
assessment for that of the Commission. 
(see para. 43) 
4. An appeal in which the applicant 
merely repeats the same claims as at 
first instance in reality constitutes a 
request for a simple re-examination of 
the application before the Court of 
First Instance, which, in accordance 
with Article 49 of the ECSC Statute of 
the Court of Justice, is outside the 
latter's competence. 
(see para. 54) 
5. As far as the system of aid laid down in 
the EC Treaty is concerned, the 
removal of unlawful State aid by means 
of recovery is the logical consequence 
of a finding that it is unlawful and that 
the aim of obliging the State concerned 
to abolish aid found by the Commis­
sion to be incompatible with the com­
mon market is to restore the previous 
situation. It follows that express com­
petence for the Commission to demand 
repayment is not necessary. There is no 
reason in this respect for a different 
assessment to be made of aid subject to 
the system under the ECSC Treaty. 
First, the system of aid established by 
the ECSC Treaty is not, as the appli­
cant seeks to argue, less rigid than that 
of the EC Treaty. On the contrary, 
Article 4(c) of the ECSC Treaty estab­
lishes a system that is clearly more 
severe than that of the EC Treaty in so 
far as it authorises the Commission to 
prohibit all State aids from the outset, 
without there being any need to verify 
whether they distort or threaten to 
distort competition or whether they 
fall within exceptions to the general 
prohibition. 
In addition, where a Member State 
does not comply with the Commis­
sion's decision to demand repayment of 
unlawful aid, the Commission must, 
under the system of the ECSC Treaty in 
the same way as under that of the EC 
Treaty, use the procedure for failure to 
fulfil obligations. It is only at a later 
stage of that procedure, namely where 
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SUMMARY — CASE C-323/00 P 
penalties are to be imposed by reason 
of non-compliance with obligations, 
that the third paragraph of Article 88 
of the ECSC Treaty provides, unlike 
the procedure for failure to fulfil obli­
gations established by the EC Treaty, 
that the Council is to become involved. 
(see paras 65-68) 
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