Joined Cases T-228/99 and T-233/99





Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen

v

Commission of the European Communities





«(State aid – Commission's lack of competence – Infringement of the rights of the defence – Infringement of essential procedural requirements – Concept of aid – Infringement of Articles 87 EC and 295 EC – Market economy investor – Appropriate rate of return – Infringement of the obligation to state reasons)»

Judgment of the Court of First Instance (Second Chamber, Extended Composition), 6 March 2003

Summary of the Judgment

1.. Commission – Management of current business – Scope – Supervisory function in matters of State aid – Included

(Arts 87(1) EC and 211 EC)

2.. State aid – Administrative procedure – Commission's obligation to give notice to the parties concerned to submit their comments – Exclusion of those parties from rights of defence

(Arts 88(2) EC and 253 EC)

3.. Actions for annulment – Pleas in law – Infringement of essential procedural requirements – Action against a Commission decision declaring State aid incompatible with the common market – Right of the beneficiary of the aid and the grantor thereof to plead infringement of the Member State's right to be heard

(Arts 88(2) EC and 230, second para., EC)

4.. Procedure – Intervention – Application in support of the form of order sought by one of the parties but relying on a different argument – Whether admissible

(Statute of the Court of Justice, Art. 40, fourth para.)

5.. Acts of the institutions – Statement of reasons – Error of fact in an otherwise adequate statement of reasons – No bearing on the lawfulness of the decision

(Art. 253 EC)

6.. Community law – General principles of law – Right to proper administration – Diligent and impartial examination of the case



7.. State aid – Definition – Grant of an advantage by a State through State resources

(Art. 87(1) EC)

8.. Competition – Application of the competition rules – Equal treatment of public and private undertakings – Rules governing public ownership – No effect – Possibility of derogations for undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly

(Arts 86(1) and (2) EC, 87(1) EC and 295 EC)

9.. State aid – Definition – Assessment on the basis of the private investor criterion – Criterion applicable to measures favouring profitable undertakings

(Art. 87(1) EC)

10.. State aid – Definition – Financial aid granted to an undertaking by public authorities – Assessment criterion – Attractiveness to a private investor of a similar investment made on the same conditions

(Art. 87(1) EC)

11.. State aid – Definition – Private investor test – Assessment in the light of the average return on capital invested in the sector concerned – Whether permissible – Limits

(Art. 87(1) EC)

12.. State aid – Definition – Application to public investors of the informed private investor test – Breach of the principle of equal treatment – None

(Art. 87(1) EC)

13.. State aid – Definition – Application of the private investor test – Commission's power of assessment – Judicial review – Limits

(Art. 87(1) EC)

14.. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid – Description of the effect on competition and on trade between Member States

(Arts 87(1) EC and 253 EC)

15.. State aid – Effect on trade between Member States – Prejudicial to competition – Assessment criteria

(Art. 87(1) EC)

16.. Acts of the institutions – Statement of reasons – Obligation – Scope – Choice of basic rate of return when applying the private investor principle

(Art. 253 EC)

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