(1)

By Decision 97/789/EC ( 2 ) (hereinafter referred to as the ‘1997 Decision’ ), the Commission authorised the Italian authorities to grant State aid for restructuring in the form of a capital injection totalling ITL 2 750 billion to the Italian company Alitalia Linee Aeree Italiane SpA (hereinafter referred to as ‘Alitalia’ ). The aid was intended to support a restructuring plan (hereinafter referred to as the ‘plan’ ) which was completed on 31 December 2000. Articles 1, 2 and 3 of the Decision state: ‘Article 1 The aid granted by Italy to the company called Alitalia Linee Aeree Italiane SpA (hereinafter: Alitalia), in the form of a capital injection totalling ITL 2 750 billion for the restructuring of the company in conformity with the plan notified to the Commission on 29 July 1996 and adjusted on 26 June 1997, is deemed to be compatible with the common market and the EEA Agreement pursuant to Article 92(3)(c) of the Treaty and Article 61(3)(c) of the Agreement provided that Italy fulfils the following undertakings: 1. to adopt the behaviour of a normal shareholder towards Alitalia; to enable it to be managed in accordance with commercial principles only and not to become involved in its management for reasons other than those strictly related to the Italian State's status as a shareholder; 2. not to grant Alitalia any further capital payment or any other aid in any form, including loan guarantees; 3. that, until 31 December 2000, the aid shall be used by Alitalia solely for the purposes of restructuring the company and not for acquiring new shareholdings in other air carriers; 4. not to give Alitalia priority in any way over other Community companies, in particular as regards the allocation of traffic rights (including those for third countries in the European Economic Area), slot allocation, ground-handling assistance and access to airport facilities where preferential treatment would be contrary to Community law. In particular, Italy confirms that it will not apply any measure that is contrary to Community law and guarantees that: (a) it shall immediately start and by 31 December 1998 at the latest shall have completed the procedure of revising Agreement No 4372 of 15 April 1992, as approved by Decree of 16 April 1992 (hereinafter: “the Agreement”), in order to bring that Agreement into line with Community regulations, in particular as regards the “right of priority”, “government interference”, “compatibility with the regulations on the liberalisation of air transport” and “airport privileges”; (b) a de facto revision of the Agreement has already taken place with regard to the above points following the exchange of Letters with Alitalia on the basis of Article 50 of the Agreement, the exchange making it clear that the Agreement applies only if it is compatible with Community law; (c) Alitalia renounces its right of priority pursuant to Article 3 of the above Agreement; (d) in coordinated or fully-coordinated Italian airports, it will, before the start of the 1997/98 winter season, appoint a coordinator who does not have any link whatsoever with Alitalia and acts completely independently of it; 5. until 31 December 2000 the available capacity of aircraft operated by Alitalia or by other carriers under agreements whereby Alitalia assumes the commercial risk for such capacity (wet-leasing, block-space, joint venture agreements, etc.) shall not exceed the following limits: (a) the number of seats available shall not exceed 28 985, of which 26 350 shall be for Alitalia's own fleet; (b) the increase in the number of available seat-kilometres for each calendar year: — within the European Economic Area excluding Italy, and — within Italy, shall not exceed 2,7 %, on the understanding that no growth is to be authorised if the growth in the corresponding markets remains lower than 2,7 %. However, if the growth rate in the corresponding markets exceeds 5 %, supply may be increased above 2,7 %, by the margin of the increase beyond 5 %; 6. Alitalia shall have an analytical accounting system that makes it possible to determine, in the short term and for each route, the profitability ratio defined as the ratio between the full revenue and the full costs (the full cost being equivalent to the sum of the variable costs and fixed costs) for a particular route; 7. until 31 December 2000 Alitalia shall refrain from offering fares lower than those offered by its competitors for an equivalent service supplied on the routes which it operates; 8. Alitalia shall dispose of its shareholding in Malev by […] ( 3 ) at the latest; 9. Alitalia shall continue with the full implementation of the restructuring plan notified to the Commission on 29 July 1996 and adjusted on 26 June 1997, in particular as regards meeting the productivity, profitability and financial restructuring objectives set out in paragraph VI; 10. to submit to the Commission, by the end of the months of March 1998, March 1999, March 2000 and March 2001, an annual report on the progress of the restructuring plan, Alitalia's economic and financial situation, and the compliance with these requirements. The report shall include a description (giving the particulars of co-contractors) of the commercial or operational cooperation agreements concluded by Alitalia during the previous year. The Commission shall, if necessary, have the information given in each of the reports checked by an independent consultant chosen by the Commission in agreement with the Italian Government. Article 2 The payment of a second instalment of ITL 500 billion and a third instalment of ITL 250 billion shall be subject to compliance with the commitments under Article 1 and the actual implementation of the restructuring plan and achievement of the expected results (in particular as regards the cost and productivity ratios set out in paragraph VI). At least 10 weeks before the release of the second and third instalments, planned for May 1998 and May 1999 respectively, Italy shall submit a report to the Commission to enable it to express comments with the assistance of an independent consultant chosen by the Commission after consulting the Italian authorities. The instalments shall not be released if the objectives of the restructuring plan are not met or if the undertakings are not met. Article 3 The undertakings and requirements set out in Article 1 shall bind both the company Alitalia Linee Aeree Italiane SpA and its subsidiary Alitalia Team.’