Opinion of the Advocate General — ECLI:EU:C:2001:685
Date: 2001-12-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: France

Summary of the Judgment
1. State aid — Definition — Aid from State resources — Aid granted by a public
undertaking — Resources of the undertaking constantly under public control —
Included
(Art. 87(1) EC)
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SUMMARY — CASE C-482/99
2. State aid — Definition — Aid granted by a public undertaking — Undertaking
controlled by the State — Imputability of the aid measure to the State — Exclu­
sion — Set of indicators to be taken into consideration
(Art. 87(1) EC)
3. State aid — Definition — Assessment on the basis of the private investor criterion —
Context of the period in which financial support granted to be taken into consideration
(Art. 87(1) EC)
1. The expression 'State resources' in
Article 87(1) EC covers all the finan­
cial means by which the public auth­
orities may actually support undertak­
ings, irrespective of whether or not
those means are permanent assets of
the public sector. Therefore, even if the
sums corresponding to a State aid
measure are financial resources of
public undertakings and are not per­
manently held by the Treasury, the fact
that they constantly remain under pub­
lic control, and therefore available to
the competent national authorities, is
sufficient for them to be categorised as
State resources.
That is the case where the State is
perfectly capable, by exercising its
dominant influence over public under­
takings, of directing the use of their
resources in order, as occasion arises,
to finance specific advantages in favour
of other undertakings.
(see paras 37-38)
2. The condition that, for a measure to be
capable of being classified as 'State aid'
within the meaning of Article 87(1)
EC, it must be imputable to the State,
cannot be interpreted in such a way
that such imputability is inferred from
the mere fact that that measure was
taken by a public undertaking con­
trolled by the State. Even if the State is
in a position to control a public under­
taking and to exercise a dominant
influence over its operations, actual
exercise of that control in a particular
case cannot be automatically pre­
sumed. It is thus necessary to examine
whether the public authorities must be
regarded as having been involved, in
one way or another, in the adoption of
that measure.
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FRANCE v COMMISSION
In that respect, the imputability to the
State of an aid measure taken by a
public undertaking may be inferred
from a set of indicators such as, in
particular, its integration into the
structures of the public administration,
the nature of its activities and the
exercise of the latter on the market in
normal conditions of competition with
private operators, the legal status of the
undertaking (in the sense of its being
subject to public law or ordinary com­
pany law), the intensity of the super­
vision exercised by the public auth­
orities over the management of the
undertaking, or any other indicator
showing, in the particular case, an
involvement by the public authorities
in the adoption of a measure or the
unlikelihood of their not being
involved, having regard also to the
compass of the measure, its content or
the conditions which it contains.
(see paras 51-52, 55-56)
3. In order to determine whether invest­
ment by the public authorities in the
capital of an undertaking, in whatever
form, may constitute State aid within
the meaning of Article 87(1) EC, it is
necessary to assess whether, in similar
circumstances, a private investor of a
dimension comparable to that of the
bodies managing the public sector
could have been prevailed upon to
make capital contributions of the same
size, having regard in particular to the
information available and foreseeable
developments at the date of those
contributions.
In order to examine whether or not the
State has adopted the conduct of a
prudent investor operating in a market
economy, it is necessary to place one­
self in the context of the period during
which the financial support measures
were taken in order to assess the
economic rationality of the State's
conduct, and thus to refrain from any
assessment based on a later situation.
(see paras 68, 70-71)
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