Judgment — ECLI:EU:T:2002:248
Date: 2002-10-17
Language of the case: German
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Private investor/private creditor test;General
Procedure: Action for annulment - successful
Origin: Germany

Summary of the Judgment 
1. State aid — Definition — Legal nature — Interpretation on the basis of objective 
factors — Review by the Court — Scope 
(Art. 87(1) EC) 
2. State aid — Definition — Assessment on the basis of the private investor criterion — 
Subsidy granted by a public body to enable the transfer of an activity causing it 
financial loss — Amount of subsidy is equivalent to the proceeds from a normal 
commercial transaction between rational operators in a market economy — Not State 
aid 
(Art. 87(1) EC) 
II - 3961 
SUMMARY — CASE T-98/00 
1. State aid, as defined in the Treaty, is a 
legal concept which must be inter­
preted on the basis of objective factors. 
For that reason, the Community courts 
must in principle, having regard both 
to the specific features of the case 
before them and to the technical or 
complex nature of the Commission's 
assessments, carry out a comprehensive 
review as to whether a measure falls 
within the scope of Article 87(1) EC. 
(see para. 40) 
2. In order to determine whether a State 
measure constitutes aid it is necessary 
to establish whether the recipient 
undertaking receives an economic 
advantage which it would not have 
obtained under normal market con­
ditions and whether that advantage has 
been granted directly or indirectly 
through State resources or constitutes 
an additional charge for the State or for 
bodies designated or established by the 
State for that purpose. 
Where a public body, linked to a third 
party by a supply contract from which 
it cannot release itself, chooses, given 
the losses it would incur through per­
formance of that contract, to assign 
performance of its obligation to 
another operator in consideration of 
the grant of a subsidy of an amount less 
than the total loss that it would have 
incurred under its contractual supply 
obligation, then that subsidy cannot be 
regarded as State aid within the mean­
ing of Article 87(1) EC if the compre­
hensive arrangement of which it forms 
a part represents a normal commercial 
transaction in the course of which the 
various parties behaved as rational 
operators in a market economy and 
the public entity involved did not have 
regard to any economic or social policy 
objectives. 
(see paras 38-39, 43-54) 
II - 3962