Case T-222/04

Italian Republic

v

Commission of the European Communities

‛State aid — Scheme of aid granted by the Italian authorities to certain public utilities in the form of tax exemptions and loans at preferential rates — Decision declaring the aid incompatible with the common market — Existing aid or new aid — Article 86(2) EC’

Judgment of the Court of First Instance (Eighth Chamber, Extended Composition), 11 June 2009 II ‐ 1881

Summary of the Judgment

In assessing whether aid affects trade between Member States and distorts or threatens to distort competition, the Commission is required, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether the aid is liable to affect such trade and distort competition. In the case of an aid scheme, the Commission may confine itself to examining the characteristics of the scheme in question in order to determine, in the grounds of its decision, whether, by reason of the terms of the scheme, it is likely to benefit in particular undertakings engaged in trade between Member States. Moreover, any grant of aid to an undertaking pursuing its activities in the Community market is liable to cause distortion of competition and affect trade between Member States. There is no threshold or percentage below which trade between Member States can be said not to be affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected. As regards the condition relating to the effect on inter-State trade, the fact that an undertaking which is the beneficiary of a State measure operates only on its national market or in its territory of origin is not decisive. Inter-State trade is affected by the measure in question when undertakings established in other Member States have less chance of providing their services in the market of the Member State concerned. (see paras 41-44, 55)

Article 87(1) EC requires it to be determined whether, under a particular statutory scheme, a State measure is such as to favour certain undertakings or the production of certain goods in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the scheme in question. The concept of aid embraces all measures which, in various forms, mitigate the charges which are normally borne by the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect. A three-year income tax exemption which mitigates the charges normally borne by the budget of an undertaking and thus confers a financial advantage on undertakings benefiting from the exemption by comparison with those which are liable to tax in the normal way constitutes State aid. Moreover, loans granted by the State or by a State-controlled body to undertakings enabling them to take advantage of more favourable conditions than those they would have obtained on the capital market constitute State aid. It is legitimate for the Commission to use as a reference point the rate laid down for the evaluation of regional aid schemes, as published periodically in the Official Journal. Those are favourable rates, applicable to successful undertakings, which would have been used if the scheme at issue had been notified in order to determine whether it contained aid elements. (see paras 60, 61, 63, 67, 70)

In the grounds of its decision on State aid, the Commission is bound to refer at least to the circumstances in which aid has been granted where those circumstances show that the aid is such as to affect trade between Member States. On the other hand, it is not bound to demonstrate the actual effect of aid already granted. If it were so bound, that requirement would ultimately give Member States which grant aid in breach of the duty to notify laid down in Article 88(3) EC an advantage over those which notify aid at the planning stage. (see para. 78)

It is clear from both the terms and purposes of Article 88 EC that aid which existed before the entry into force of the EC Treaty and aid which could be properly put into effect in accordance with the conditions laid down in Article 88(3) EC is to be regarded as existing aid within the meaning of Article 88(1) EC, while, on the other hand, measures to grant or alter aid, where the alterations may relate to existing aid or initial plans notified to the Commission, must be regarded as new aid subject to the obligation of notification laid down by Article 88(3) EC. Where the alteration affects the actual substance of the original scheme, it is transformed into a new aid scheme. However, there can be no question of such a substantive alteration where the new element is clearly severable from the original scheme. (see paras 90, 94)