Opinion of the Advocate General — ECLI:EU:C:2008:639
Date: 2008-11-20
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Italy

summary publication and is available in full in French and Italian only. 6 – L. 29/07/81 No 394; GURI 30/05/81 No 147 and 29/07/81 No 206. 7 – See recital 32 of the contested decision. 8 – Approximately EUR 1.18 million. 9 – Approximately EUR 700 000. 10 – Approximately EUR 1 860 000. This was the figure given by Italy on 23 July 2003; previously (in a letter to the Commission dated 16 May 2002) Italy had declared that the sum loaned was LIT 1 940 579 808, or approximately EUR 1 million. This was one of the sums actually paid to Wam; other sums were also paid, but the exact amount is not clear from the wording of the contested decision. 11 – See paragraphs 3 and 4 of the judgment under appeal for a more detailed overview. 12 – Footnote to the contested decision: Case C-142/87 Belgium v Commission (‘Tubemeuse’) [1990] ECR I-959. 13 – The Court of First Instance lists grounds concerning the decision-making procedure; violation of the rights of self-defence, legitimate expectations and legal certainty; the substantive questions of whether the aids were unlawful under Article 88(3) EC and whether those aids affected trade and distorted competition; the consequences of the fact that the aids in question were linked to exports; the application of de minimis rules and the question of the amount of aid paid and to be repaid (paragraph 38 of the judgment under appeal). 14 – See Article 225(1) EC, Article 58 of the Statute of the Court of Justice and Case C‑115/90 P Turner v Commission [1991] ECR I-1423. 15 – Article 225(1) EC, second paragraph, states that ‘[d]ecisions given by the Court of First Instance … may be subject to a right of appeal to the Court of Justice on points of law only, under the conditions and within the limits laid down by the Statute.’ 16 – Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, at paragraph 19; Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, at paragraph 67. 17 – Case 24/62 Germany v Commission [1963] ECR 63, paragraph 11. See also Papierwarenfabriek, cited above in footnote 16, at paragraph 21. 18 – Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 75. 19 – Case C-372/97 Italy v Commission [2004] ECR I-3679, paragraph 44. 20 – Case C-66/02 Italy v Commission [2005] ECR I-10901, paragraph 112. 21 – Cited in footnote 16, paragraphs 19 and 24. See also Joined Cases C-329/93, C-62/95 and C-63/95 Germany v Commission [1996] ECR I-5151, paragraph 52. 22 – Cited in footnote 16, paragraph 63. 23 – The Court here referred to Papierwarenfabriek, cited in footnote 16, paragraph 19; Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16; and Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86. 24 – At paragraphs 60 to 62 and 64 of the judgment under appeal. 25 – In Italian, ‘prevedibili effetti’; in French,‘effets prévisibles’. 26 – At paragraph 64, the Court of First Instance stated in terms that the Commission was not required to show that the aid had a real effect, or to delineate the market in question, or to make a real economic analysis of the market, the economic sector, competitors’ positions and intra-Community trade (provided that it had set out the ways in which the aid was likely to produce effects on that market), or to examine the effect of the loans on Wam’s prices, compare them with competitors’ prices or examine Wam’s sales in the UK. 27 – Idem. 28 – The Commission identifies paragraph 72 (and following) of the judgment under appeal as imposing this inconsistent obligation. 29 – At paragraph 63 of the judgment under appeal. 30 – As required by the Court in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13. 31 – Tubemeuse, cited in footnote 12, point 43. 32 – The Court of First Instance here cited 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 Alzetta and Others v Commission [2000] ECR II-2319, paragraph 80, which refers back (inter alia) to Tubemeuse. 33 – See paragraphs 66, 70 and 72 of the judgment under appeal. 34 – In Italian, ‘sarebbe potenzialmente costituivo de tali effetti’; in French, ‘serait potentiellement constitutive de tels effets’. 35 – At paragraph 76 of the judgment under appeal. 36 – At paragraph 67 of the judgment under appeal. 37 – Case C-156/98 Germany v Commission [2000] ECR I-6857. 38 – At recital 75. 39 – At paragraph 30: see also Case C-301/87 France v Commission (‘Boussac Saint Frères’) [1990] ECR I-307, at paragraphs 44 and 50, and Case C-86/89 Italy v Commission [1990] ECR I-3891, at paragraph 18, there cited. 40 – Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11 (my emphasis). 41 – At paragraph 67 of the judgment under appeal. 42 – Cited in footnote 37, at paragraph 30. 43 – See further the first half of paragraph 72 of the Court of First Instance’s judgment, which deals expressly with this lacuna in the Commission’s reasoning. 44 – Recitals 34 and 37 (with regard to the first loan), and 62 and 64 (with regard to the second loan). 45 – It does not (for example) examine whether Wam’s decision to undertake the export penetration programme was dependent on, or independent from, the availability of the loans. In consequence, it is (for example) impossible to say whether – on the ‘money is fungible’ argument – the loans enabled Wam to divert funds that it would otherwise have spent on export promotion into supporting a lower pricing policy on the EU market, or whether in the absence of the loans the export promotion programme would simply not have happened. 46 – Cited in footnote 12. 47 – There is (for example) no argument advanced that the loans enabled Wam to run a more effective sales and marketing campaign in both the export markets and the EU market. While advantages such as economies of scale are certainly a possibility, there is again no exploration of such a possibility in the contested decision. 48 – At paragraph 74 of the judgment under appeal. 49 – See paragraph 64 of the judgment under appeal, where the Court of First Instance referred expressly to Wam’s sales on the UK market, and further paragraph 68, where the Court of First Instance summarised the material to be gleaned from recitals 76 and 78 of the contested decision. 50 – At paragraph 66 of the judgment under appeal. 51 – At points 37 to 39 above. 52 – Cited in footnote 20, paragraph 117; see likewise Case C-310/99 Italy v Commission [2002] ECR I-2289, paragraph 84. 53 – Cited above in footnote 12, paragraph 43. The Commission also cited Case C-310/99 Italy v Commission, cited in footnote 52, paragraph 86. 54 – Case C-222/04 [2006] ECR I-289. The Commission also cited Case C-66/02 Italy v Commission, cited in footnote 20, and Case C-148/04 Unicredito Italiano [2005] ECR I-11137. 55 – Case C-409/00 [2003] ECR I-1487, at paragraph 75. 56 – See paragraph 142 in Cassa di Risparmio di Firenze. The French text reads ‘la circonstance qu’un secteur économique a fait l’objet d’une libéralisation au niveau communautaire est de nature à caractériser une incidence réelle ou potentielle des aides sur la concurrence, ainsi que leur effet sur les échanges entre États Membres’. In contrast, the English translation reads ‘[t]he fact that an economic sector has been liberalised may serve to determine that the aid has [a likely effect on trade and competition]’ (my emphasis) and the Italian (the language of the case) uses ‘evidenzia un’incidenza’. It seems to me that the French text is ambiguous and that the Italian and English versions more faithfully reflect the principle set out by the Court in Spain v Commission. 57 – At paragraph 74 of the judgment under appeal. 58 – See recitals 34 and 37 (with regard to the first loan), and 62 and 64 (with regard to the second loan). 59 – My emphasis. 60 – In Italian, ‘eventualemente’; in French, ‘le cas échéant’ (my emphasis). 61 – See point 38 above.