Judgment — ECLI:EU:T:2000:151
Date: 2000-06-15
Language of the case: Italian
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Concepts: Statement of reasons;General;Admissibility and examination of applications, forms of order sought and pleas in law;Interpretation of Community law;Principle of the protection of legitimate expectations;Commission decision following the formal investigation procedure;Damage to competition and effect on trade;Existing aid and new aid;Beneficiaries of the aid to be recovered
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible
Origin: Italy

Summary of the Judgment 
1. Procedure — Admissibility — Application for suspension of the operation of the 
contested decision — Application submitted in the same document as the main 
application — Inadmissibility 
(Rules of Procedure of the Court of First Instance, Art. 104(3)) 
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SUMMARY —JOINED CASES T-298/97, T-312/97, T-313/97, T-315/97, T-600/97 TO T-607/97, T-1/98, T-3/98 TO T-6/98 AND 
T-23/98 
2. Actions for annulment — Jurisdiction of the Community judicature — Claim for the 
issue of directions to Community institutions or Member States, for a finding of 
liability of the Member States or for the Community judicature to substitute itself for 
those institutions — inadmissibility 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC) and Art. 176 (now 
Art. 233 EC)) 
3. State aid — Effect on trade between Member States — Impairment of competition — 
Criteria of assessment — Actual effect on trade and actual distortion of competition — 
Scope 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(1), (2) and 
(3) (now Art. 88(1), (2) and (3) EC)) 
4. State aid — Effect on trade between Member States — Impairment of competition — 
Criteria of assessment — Smallness of the aid — Scope 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
5. State aid — Effect on trade between Member States — Impairment of competition — 
Criteria of assessment — Whether tax on the aid taken into consideration — Not taken 
into consideration 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
6. State aid — Effect on trade between Member States — Impairment of competition — 
Criteria of assessment — Recipient of the aid not itself an exporter 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC)) 
7. State aid — Existing and new aid — Aid introduced before liberalisation of a market 
initially closed to competition — Classification of existing aid 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now 
Art. 88(3) EC)) 
8. State aid — Existing aid — Commission decision finding aid incompatible with the 
common market — Temporal limits on its effects 
(EC Treaty, Art. 93(1) and (2) (now Art. 88(1) and (2) EC)) 
9. Community law — Interpretation — Acts of the institutions — Statement of 
reasons — To be taken into account 
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ALZETTA AND OTHERS V COMMISSION 
10. State aid — Recovery of unlawful aid — Infringement of the principle of proportion­
ality — None — Procedures for recovery 
(EC Treaty, Art. 93(2), first para, (now Art. 88(2), first para., EC)) 
11. State aid — Recovery of unlawful aid — Aid granted in breach of the procedure under 
Article 93 of the Treaty (now Article 88 EC) — Legitimate expectations — Excep­
tional circumstances — None 
(EC Treaty, Art. 93 (now Art. 88 EC)) 
12. Acts of the institutions — Statement of reasons — Obligation — Scope — Context 
and all legal rules taken into account 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
1. According to Article 104(3) of the 
Rules of Procedure of the Court of 
First Instance, any application to sus­
pend the operation of a measure of an 
institution must be made by separate 
document. It follows that an applica­
tion for a suspension made in the same 
document as the principal action is 
inadmissible. 
(see paras 37-38) 
2. Within the framework of the power of 
annulment conferred by Article 173 of 
the EC Treaty (now, after amendment, 
Article 230 EC), it is not for the 
Community judicature to issue direc­
tions to Community institutions or 
Member States on whatever ground 
or to substitute itself for the Commu­
nity institutions. It is for the institution 
concerned, under Article 176 of the EC 
Treaty (now Article 233 EC), to adopt 
the measures required to give effect to a 
judgment delivered in an action for 
annulment, exercising, subject to 
review by the Community Court, the 
discretion which it has for this purpose, 
complying with both the operative part 
and grounds of the judgment it is 
required to comply with and the provi­
sions of Community law. 
(see para. 42) 
3. An interpretation of Article 92(1) of 
the Treaty (now, after amendment, 
Article 87(1) EC) to the effect that 
only aid which has an actual effect on 
trade between Member States and 
distorts competition is covered by that 
provision is incompatible with the 
system for monitoring aid introduced 
by Article 92 et seq. of the Treaty. As 
part of its assessment of new aid, which 
pursuant to Article 93(3) of the Treaty 
(now Article 88(3) EC) is to be notified 
to the Commission before implementa­
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SUMMARY — JOINED CASES T-298/97, T-312/97, T-313/97, T-315/97, T-600/97 TO T-607/97, T-1/98, T-3/98 TO T-6/98 AND 
T-23/98 
tion, the Commission is in fact called 
on to review whether that aid might 
affect trade between Member States 
and distort competition. 
A real effect on trade between Member 
States or actual distortion of competi­
tion do not have to be established in 
the context of the constant review of 
existing aid under Article 93(1) and (2) 
of the Treaty, when the Commission is 
required to verify, particularly in the 
event of a change in the competitive 
situation, whether the existing aid is 
still compatible with the Treaty and, 
where appropriate, to require the 
immediate discontinuance of the aid 
that has become incompatible. 
Lastly, if a new aid has been granted 
without prior notification having been 
given, the Commission is not required 
to establish whether the aid has a real 
effect on trade and competition. Such a 
requirement would favour Member 
States which grant aid in breach of 
the obligation to notify, to the detri­
ment of those which do notify aid at 
the planning stage. 
(see paras 76-79) 
4. The small size of the recipient under­
takings and the relatively small amount 
of aid allocated do not mean that there 
is no effect on competition and trade 
where, as in the road haulage sector, 
the presence of a large number of 
small-sized undertakings is a feature 
of the market structure. The effects on 
competition and trade of even rela­
tively modest aid may not be negligible, 
and such aid cannot be regarded as of 
little importance. 
(see para. 86) 
5. The Commission is not empowered, 
under the State aid monitoring system 
established by the Treaty, to take into 
consideration the incidence of tax on 
the amount of financial aid allocated 
when it assesses whether it is compa­
tible with the Treaty. Such charges are 
not levied specifically on the aid itself 
but are levied downstream and apply to 
the aid in question in the same way as 
to any income received. They cannot 
therefore be relevant when assessing 
the specific effect of the aid on trade 
and competition and, in particular, 
when estimating the benefit obtained 
by the recipients of such aid by com­
parison with competing undertakings 
which have not received such aid and 
whose income is also liable to tax. 
Furthermore, the Commission does not 
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ALZETTA AND OTHERS V COMMISSION 
as a general rule have the data needed 
to assess the effect of tax on the benefit 
obtained by the recipient undertaking. 
In principle, that assessment occurs 
only when aid unduly paid is recovered 
in accordance with procedures under 
national law, and therefore falls solely 
within the competence of the authori­
ties of the Member State concerned. 
(see para. 89) 
6. Aid may be of such a nature as to affect 
trade between Member States and to 
distort competition even if the recipient 
undertaking that is competing with 
producers from other Member States 
does not itself export. A situation of 
that kind may also arise when there is 
no over-capacity in the particular sec­
tor. Where a Member State grants aid 
to an undertaking, domestic produc­
tion may for that reason be maintained 
or increased, with the result that under­
takings established in other Member 
States have less chance of exporting 
their products to the market in that 
Member State. 
(see para. 91) 
7. Existing aid is aid introduced before 
the Treaty came into force or before the 
accession of the Member State con­
cerned to the European Communities 
and aid which has been properly put 
into effect under the conditions laid 
down in Article 93(3) of the Treaty 
(now Article 88(3) EC). 
Likewise, a system of aid established in 
a market that was initially closed to 
competition must, when that market is 
liberalised, be regarded as an existing 
aid system, since at the time of its 
establishment it did not come within 
the scope of Article 92(1) of the Treaty 
(now, after amendment, Articles 87(1) 
EC), which, having regard to the 
requirements set out in that provision 
regarding effect on trade between 
Member States and repercussions on 
competition, applies only to sectors 
open to competition. 
(see paras 142-143) 
8. Existing aid within the meaning of 
Article 93(1) and (2) of the Treaty 
(now Article 88(1) and (2) EC) can be 
the subject, if at all, only of a decision 
finding it incompatible as to the future. 
Pursuant to those provisions and in 
accordance with the principle of legal 
certainty, the Commission is, as part of 
its constant review of existing aid, only 
empowered to require the elimination 
II - 2323 
SUMMARY - JOINED CASES T-298/97, T-312/97, T-313/97, T-315/97, T-600/97 TO T-607/97, T-1/98, T-3/98 TO T-6/98 AND 
T-23/98 
or modification of such aid within a 
period which it is to determine. That 
aid can, therefore, lawfully be imple­
mented as long as the Commission has 
not found it to be incompatible with 
the common market. 
(see paras 147-148) 
9. The operative part of a measure is 
indissociably linked to the statement of 
reasons and, when it has to be inter­
preted, account must be taken of the 
reasons that led to its adoption. 
(see para. 163) 
10. As the elimination of an illegal aid 
through recovery of the amount of aid 
disbursed plus interest is the logical 
consequence of a finding that that aid 
is incompatible with the common mar­
ket, its sole purpose being to restore the 
previously existing situation, that obli­
gation cannot in principle be dispro­
portionate to the objectives of Arti­
cles 92 of the Treaty (now, after 
amendment Article 87 EC) 93 and 94 
of the Treaty (now Articles 88 EC and 
89 EC). It is for the Member State 
concerned, when recovering the aid, to 
determine the procedures for its recov­
ery in such a way as to restore the 
competitive situation previously exist­
ing, without detracting from the effec­
tiveness of Community law. 
(see para. 169) 
11. Only exceptional circumstances can 
legitimately be the foundation for reci­
pients' expectations that aid is lawful. 
Furthermore, recognition of such legit­
imate expectation presupposes in prin­
ciple that the aid has been granted in 
compliance with the procedure laid 
down by Article 93 of the Treaty 
(now Article 88 EC). A diligent eco­
nomic operator should normally be 
able to determine whether that proce­
dure has been complied with. 
(see para. 171) 
12. The question whether the statement of 
reasons for a measure satisfies the 
requirements of Article 190 of the EC 
Treaty (now Article 253 EC) must be 
assessed with regard not only to its 
wording but also to its context and to 
all the legal rules governing the matter 
in question. 
(see para. 175) 
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