CELEX: 61999CC0328
Language: en
Date: 2001-09-27 00:00:00
Title: Opinion of Mr Advocate General Geelhoed delivered on 27 September 2001. # Italian Republic and SIM 2 Multimedia SpA v Commission of the European Communities. # Action for annulment - Decision 2000/536/EC - State aid granted to Seleco SpA. # Joined cases C-328/99 and C-399/00.

OPINION OF ADVOCATE GENERALGEELHOED delivered on 27 September 2001  (1)
         Joined Cases C-328/99 and C-399/00 Italian Republicv  Commission of the European Communities  SIM 2 Multimedia SpAvCommission of the European Communities
            ((Action for annulment – Decision 2000/536/EC – State aid in favour of Seleco SpA))
            
      
         
        I ─ Introduction
      
      1.  On 2 June 1999, the Commission adopted Decision 2000/536/EC concerning State aid granted by Italy to Seleco SpA (hereinafter
      the  
      contested decision). 
      
         			(2)
         		 Essentially, this decision establishes that there is State aid, that the aid is incompatible with the common market and that
      the unlawful aid must be recovered.
      
      2.  The Italian Government brought an action before the Court against the decision (Case C-328/99). SIM 2 Multimedia brought an
      action against the same decision in the Court of First Instance (Case T-195/99). In an order of 16 October 2000, the Court
      of First Instance declined jurisdiction and referred the case to the Court of Justice. The case was lodged at the Court Registry
      on 31 October 2000 under number C-399/00. In view of the link between the two cases, they were joined by an order of the President
      of the Court of 5 February 2001.
      
      3.  In these two joined cases, the dispute relates to the interpretation of the private-investor principle in the assessment of
      State aid and whether aid can be recovered from an undertaking which, using part of the assets, has partially continued the
      activities of the original beneficiary undertaking.
       II ─ Facts and Law
       The parties concerned
      
      4.  The protagonists in both these cases are Seleco (as the recipient of the aid), two public bodies, Friulia and REL (as givers
      of the aid) and SIM 2 Multimedia SpA, as the party particularly affected by the requirement imposed on the Italian Government,
      in the contested decision, to recover the aid.
      
      5.  Until it was declared bankrupt, on 17 April 1997, Seleco SpA (hereinafter  
      Seleco) was engaged in the consumer-electronics markets, more specifically in the sector of colour-television sets, decoders for
      encrypted programmes (in the pay-TV sector) and professional products (video-projectors and monitors). In the last 10 years
      before its bankruptcy, Seleco regularly received public aid. The present case relates to an aid operation in 1994 and 1996.
      
      6.  Multimedia was established in 1995. In March 1996, the most profitable of Seleco's activities (video-projectors and monitors)
      were transferred to Multimedia, which became Seleco Multimedia Srl; at that time, Seleco held all of the shares. In July 1996,
      a third of the shares were sold to Italtel and a third to Friulia; a third remained with a company belonging to the Seleco
      group. The block of shares in Seleco Multimedia Srl which Seleco controlled through that company was sold in December 1997
      to another private company in a public auction pursuant to a court order. The name of that company at present is SIM 2 Multimedia.
      
      7.  The operations described by the Commission as State aid were carried out by Friulia SpA (hereinafter  
      Friulia) and by Ricostruzione Elettronica SpA (hereinafter  
      REL).
      
      8.  Friulia is a finance company controlled by the Region of Friuli-Venezia Giulia; it is responsible for promoting the economic
      development of that region.
      
      9.  REL is controlled by the Ministry of Industry, Commerce and Craft Trades. This public undertaking, established in 1982, had
      the remit of reorganising the consumer-electronics sector by setting up companies, by taking holdings in existing companies
      and by financing undertakings in which it had holdings. Earlier procedures regarding State aid show that the Commission required
      the Italian authorities to liquidate REL; it noted the Italian Government's undertaking that, by the end of 1995, REL would
      sell off to private shareholders its holdings in the undertakings within the consumer-electronics sector. It is also stated
      in that decision of 20 May 1992 (OJ 1992 C 166, p. 6) that no new aid operation would be approved.
       Background to the  contested decision
      
      10.  By the end of 1993, Seleco's losses had risen to the point that its then shareholders (Sofin, a private undertaking, and Friulia
      and REL; these held 37%, 3.7% and 59.3% respectively) were required by Italian law to choose between winding-up and re-capitalisation,
      total debts considerably exceeding the equity capital. In those circumstances, the shareholders originally opted for winding-up
      but, following the intervention of the Italian Government, concerned by the social unrest caused by the decision to wind it
      up, it was finally decided to re-capitalise. This government action meant that REL would cover all debts in excess of the
      equity capital, including those portions that should be met by the other shareholders, and that the other shareholders would
      reconstitute the company capital. REL agreed provided that the others would reconstitute the company capital. The agreement
      between REL and the other shareholders was formalised by a directive from the Italian Government and was subsequently notified
      to the company. REL therefore partially wrote off its claims on Seleco (ITL 16.8 billion out of a total of ITL 82 billion),
      Friulia contributed ITL 13 billion (7 billion in new capital, ITL 6 billion converting the claim into Seleco shares), Sofin
      contributed ITL 19 billion and the balance of ITL 10.5 billion was provided by a consortium of banks.
      
      11.  After these measures, the new capital was distributed as follows: 42.64% was held by Sofin, 28.89% was held by Friulia, 23.33%
      was held by public and private banks and 5.13% was held by employees.
      
      12.  However, massive losses were incurred again in 1994 and 1995 and, by the end of 1995, they were again compelled to wind the
      company up or re-capitalise it. Again they decided to re-capitalise. Sorec, a new shareholder, contributed ITL 28.8 billion
      and, in addition, REL released its outstanding claim of ITL 65.2 billion for ITL 20 billion. Since not even that was enough
      to save Seleco ─ from the legal point of view ─ Seleco issued a debenture loan (subscribed to by a consortium of public and
      private banks), Friulia granted a convertible loan of ITL 12 billion and two thirds of Seleco's shareholdings in Multimedia
      Srl were sold for ITL 20 billion.
      
      13.  Following re-capitalisation, the equity capital was distributed as follows: Sorec held 87.91%, Sofin 5.22%, Friulia 3.49%,
      the banks 2.82% and employees 0.56%.
      
      14.  Seleco was finally declared bankrupt on 17 April 1997. The receiver brought an action to revoke the repurchase for ITL 20
      billion of the outstanding claim of ITL 65.2 billion held by REL against Seleco. The court cancelled the preferential nature
      of Seleco's debt of ITL 13 billion to Friulia, which received compensation (ITL 1 billion) for the loss of the lien, consisting
      of four of Seleco's industrial brands given to it as a guarantee.
       The contested decision
      
      15.  The Commission initiated the procedure under Article 88(2) EC on 27 September 1994. On 10 October 1994, the Commission officially
      informed the Italian authorities of initiation of the procedure. It took this action because it had learned that the aid to
      Seleco originally notified by the Autonomous Region of Friuli-Venezia Giulia had already been implemented and that REL had
      partially written off its claims on Seleco under an agreement concluded in 1994 to cover losses for the financial year 1993.
      In a communication published in the Official Journal of 29 December 1994, the Commission invited comments from interested
      parties.By a decision of 3 February 1998, the Commission extended the procedure under Article 88(2) EC. The reason for that extension
      was that the Commission had learned from press reports that new aid measures had been adopted for Seleco. The Commission also
      wished to make a detailed analysis of the acquisition of part of the holdings in Seleco-Multimedia by Friulia and Italtel;
      the Italian Government was informed thereof by letter of 18 February 1998. Comments were invited from interested parties,
      in the Official Journal of 20 May 1998.
      
      16.  The Commission examined the following measures:
      
      
      ─
         REL's partial write-off of the amount owed to it by Seleco (ITL 16.8 billion out of ITL 82 billion, in 1994); 
      
      
      
      ─
         the conversion into Seleco shares of the ITL 6 billion claim and the capital contribution of ITL 7 billion from Friulia as
         part of the 1994 recapitalisation; 
      
      
      
      ─
         the injection of ITL 10.5 billion by a consortium of banks, chiefly private-sector, as part of the recapitalisation of Seleco
         in 1994; 
      
      
      
      ─
         the operation by Seleco in July 1996 to repurchase its outstanding debt of ITL 66 billion to REL, for ITL 20 billion; 
      
      
      
      ─
         the convertible loan of ITL 12 billion granted in April 1996 by Friulia for five years at 7% against a guarantee consisting
         of Seleco's four industrial brands; 
      
      
      
      ─
         the debenture loan of ITL 12 billion granted in 1996 by a consortium of banks, chiefly in the private sector, for four years
         and 10 months at 5%; 
      
      
      
      ─
         the acquisition by Friulia and Italtel of a third each of the shares in Multimedia at a price of ITL 10 billion each. 
      
      
      
      17.  As regards the participation by the consortium of banks, the Commission determined, firstly, that that was partly intervention
      by private parties whose actions were not within the scope of Article 87(1) EC and, secondly, that their actions were inevitable
      and designed chiefly to safeguard their claims and that that also applied in relation to the public-sector banks which (as
      regards the 1996 operation) had imposed the same conditions as the private-sector banks. Those interventions were therefore
      not regarded as aid.
      
      18.  The Commission also concluded that the Friulia and Italtel investments in Multimedia were not State aid within the meaning
      of Article 87(1) EC. It was relevant here that Italtel (owned as to 50% by Siemens and 50% by the public undertaking Stet)
      had had to obtain approval from its private shareholder and that this was an investment in a firm operating in a particularly
      dynamic and promising sector.
      
      19.  The Commission determined that the other operations specified above were aid within the meaning of Article 87(1) EC.
      
      20.  The relevant portion of the operative part reads as follows:Article 1 states: The following aid granted by Italy to Seleco SpA is hereby declared incompatible with the common market:
      (a) the partial write-off in 1994 by Ristrutturazione Elettronica SpA of ITL 16.8 billion on a loan of ITL 82 billion;
      
      (b) the repurchase in 1996 by Seleco SpA of its outstanding debt to Ristrutturazione Elettronica SpA of ITL 65.2 billion for ITL 20
      billion;
      
      (c) the conversion into shares by Friulia SpA of an ITL 6 billion loan granted by it in 1992;
      
      (d) a capital injection of ITL 7 billion by Friulia SpA in 1994;
      
      (e) a convertible loan of ITL 12 billion at 7% granted by Friulia in 1996 and guaranteed by a lien on four industrial brands owned
      by Seleco.
      Article 2(1) reads:Italy shall take all necessary measures to recover the aid referred to in Article 1, which has already been granted unlawfully,
      from Seleco SpA and, additionally, with regard to the part not recoverable from Seleco, from Seleco Multimedia srl and any
      other firm which benefited from asset transfers designed to frustrate the effects of this decision.
      
      21.  The Commission describes the operations specified in Article 1 of the decision as State aid because the actions of both Friulia
      and REL were not those of a private investor. The Commission also examined those operations in the light of the criteria set
      out in the Community guidelines on State aid for rescuing and restructuring firms in difficulty, 
      
         			(3)
         		 to determine whether the aid qualified for exemption under Article 87(3)(c) EC, and established that those criteria were
      not taken into consideration. It was therefore aid incompatible with the common market.
      
      22.  Holding the aid to be illegal and moreover incompatible with the common market, the Commission required it to be recovered.
      It also decided that any part wholly or partly not recoverable from Seleco must be recovered from Seleco Multimedia.
      
      23.  Regarding this section of the operative part, the Commission explained in the preamble to the decision that, in order to prevent
      the effectiveness of the decision from being frustrated and the market from continuing to be distorted, the Commission might
      be compelled to require that recovery be not restricted to the original firm but be extended to the firm which continued the
      activity of the original firm, using the transferred means of production. Important factors here were the purpose of the transfer
      (assets and liabilities, continuity of the workforce, bundled assets, etc.), the transfer price, the identity of the shareholders
      or owners of the acquiring firm and of the original firm, the time at which the transfer was carried out (following the start
      of the investigation, the initiation of the procedure or the final decision) and, lastly, the economic logic of the transaction.
      
      24.  In this instance, the Commission is referring to the re-structuring of Seleco in March 1996, in particular the transfer of
      assets and the corresponding activities to Multimedia, a firm established earlier. That transfer occurred after the initiation
      of the procedure under Article 88(2) EC. Shortly afterwards, in July 1996, that operation was followed by the sale of the
      two blocks of shares.
       III ─ Pleas of the parties
      
      25.  As stated in the introduction to this Opinion, both the Italian Government and SIM 2 Multimedia have brought actions against
      this decision.
      
      26.  In Case C-328/99, the Italian Government claims annulment of the decision and, in the alternative, annulment of that part
      relating to REL's intervention in 1996 and, in the further alternative, annulment of the part relating to recovery from Seleco
      Multimedia Srl and from any other undertaking to which Seleco assets have been transferred. Finally, it claims that the Commission
      be ordered to pay costs.
      
      27.  In Case C-399/00, SIM 2 Multimedia claims annulment of Article 2(1) of the contested decision and claims that the Commission
      be ordered to pay costs.
      
      28.  The Commission claims that the action for annulment in Case C-328/99 be rejected and that the application for partial annulment
      in Case C-399/00 be declared unfounded and that the Italian Government and SIM 2 Multimedia, respectively, be ordered to pay
      the costs.
      
      29.  The chief arguments used by the Italian Government in support of its complaints relate to the misapplication of Articles 87 EC
      and 88 EC, the defective statement of grounds and infringement of the rules of procedure on the recovery of aid.
      
      30.  The chief arguments used by SIM 2 Multimedia in support of its action relate to the right to a fair hearing, the misapplication
      of Articles 87 EC and 88 EC, the infringement of Article 253 EC and the defective statement of grounds.
       IV ─ Analysis
      
      31.  In these cases, there are two central issues. The first is whether, having regard to the private-investor principle, there
      is State aid here. The Italian Government argues against this while the Commission believes otherwise.The second issue is whether, when there is a requirement to recover State aid granted unlawfully, the recovery can be extended
      to legal persons other than the original recipient undertaking.
      
      32.  I shall start by examining the first issue, which is the first plea in Case C-328/99. I shall examine the second issue when
      considering the second and third pleas in Case C-328/99 and the pleas in Case C-399/00.
      A.   The Italian Government's primary claim (Case C-328/99) 
      
      
      
      33.  The Italian Government (referring to the 1984 guidelines on government capital injections)  
      
         			(4)
         		 essentially maintains that the operations carried out by REL and Friulia are the same as those of a private investor and
      that this is therefore not State aid. It admits that there was an element of risk in both re-capitalisation exercises (1994
      and 1996), but there was a reasonable possibility of success, based on an  
       ex ante  assessment. In this context, the Italian Government observes that the public capital injected in 1994 was about ITL 30 billion
      and the private capital injected about ITL 32 billion. In 1996, the contribution from Friulia came to ITL 12 billion and that
      from REL to ITL 45 billion, whilst the public sector contributed ITL 40.8 billion. That substantial input of capital with
      a relatively large number of private investors shows that the two operations to relaunch Seleco's activities were regarded
      as being sufficiently likely to succeed by a private investor operating under normal market economy conditions.
      
      34.  The Italian Government does not share the Commission's opinion that the private investors were induced to take part, and maintains
      that the public bodies decided to contribute only if the private investors were also prepared to participate.
      
      35.  Regarding REL's intervention in 1994, the Italian Government notes that the claim of ITL 82 billion was entirely unguaranteed
      and that, if Seleco were wound up, there was no possibility of REL recovering even a part of its claim. Nor was it strange
      that for the fifth time, with the proviso that the other investors should pay for the entire re-capitalisation themselves,
      REL should make a further contribution in the form of a partial write-off of its claim. In this way REL had disengaged from
      Seleco's equity capital but kept intact the ability to recover its outstanding claim. And its agreement in 1996 to re-purchase
      of the outstanding claim of ITL 65.2 billion for ITL 20 billion can be explained by the same motive.
      
      36.  Regarding the interventions by Friulia, the Italian Government maintains that ─ as regards the 1994 intervention ─ had Seleco
      been wound up, Friulia would have been able to obtain no more than half of its claim of ITL 6 billion. The convertible loan
      of ITL 12 billion, granted by Friulia in 1996 at 7% a year interest and with a lien on four of Seleco's industrial brands,
      is regarded by the Italian Government as in accordance with the market, considering the substantial value of those brands.
      The fact that, at the time of the bankruptcy, those brands were released for just ITL 1 billion is not relevant here and must
      be attributed to their considerable loss of value following the declaration of bankruptcy. In addition, the Italian Government
      remarks here that, by contrast, the Commission did regard as acceptable a debenture loan of the same amount granted by the
      banks, including public banks, even though that bank loan was granted at a lower rate of interest and that there was no guarantee.
      In contrast to what is stated in point 91 of the preamble to the contested decision, Italian law lays down that, where a bankrupt
      company is being wound up, the debts arising out of a debenture loan are not repaid before the other unsecured claims.
      
      37.  The Commission, referring to the Community guidelines on State aid for rescuing and restructuring firms in difficulty,  
      
         			(5)
         		 states that the measures in favour of Seleco do not conform to the private-investor principle. According to the Commission,
      the aid to Seleco was granted only to delay its collapse as long as possible and to avoid the social consequences that would
      have arisen from a company plan.
      
      38.  The Commission refers generally to the long-standing critical position of Seleco and to the lack of any credible restructuring
      plan. The restructuring plan presented in 1994 was not accompanied by appropriate measures for financial recovery or reorganisation.
      The weakness of the plan was also confirmed by a report prepared by KPMG (Peat Marwick Corporate Finance, hereinafter  
      KPMG). That applies also to the restructuring plan presented in 1996, entirely based on the 1994 plan, with no modifications or
      revisions worth mentioning.
      
      39.  According to the Commission, the decision not to wind Seleco up, in particular in 1994, and the participation by private investors
      in the re-capitalisation were in reality dictated by the Italian Government and do not constitute a decision taken by a private
      investor operating under normal market conditions. The fact that private investors took part in both re-capitalisations cannot,
      the Commission maintains, give automatic justification for the interventions by the public authorities. Those public authorities
      should not get involved in senseless investments in which poorly-informed private investors had also mistakenly taken part.Analysis
      
      40.  In the Community guidelines on government capital injections and in those on State aid for rescuing and restructuring firms
      in difficulty,  
      
         			(6)
         		 the Commission defined the criteria which it uses in assessing whether a public holding could be regarded as State aid. In
      the Community guidelines on government capital injections, it is stated that State aid is not involved where fresh capital
      is contributed in circumstances that would be acceptable to a private investor operating under normal market economy conditions.
      But Section 3.3 of the guidelines lays down that there is State aid where that is not the case.
      
      41.  Section 3.3 also lays down that there is State aid: 
      
      
      ─
         where the financial position of the company, and particularly the structure and volume of its debt, is such that a normal
         return (in dividends or capital gains) cannot be expected within a reasonable time from the capital invested; 
      
      
      
      ─
         where, because of its inadequate cash-flow if for no other reason, the company would be unable to raise the funds needed for
         an investment programme on the capital market; 
      
      
      
      ─
         where the holding is a short-term one, with duration and selling price fixed in advance, so that the return to the provider
         of capital is considerably less than he could have expected from a capital market investment for a similar period; 
      
      
      
      ─
         where the public authorities' holding involves the taking over or the continuation of all or part of the non-viable operations
         of an ailing company through the formation of a new legal entity; 
      
      
      
      ─
         where the injection of capital into companies whose capital is divided between public and private shareholders makes the public
         holding reach a significantly higher level than originally and the relative disengagement of private shareholders is largely
         due to the companies' poor profit outlook; 
      
      
      
      ─
         where the amount of the holding exceeds the real value (net assets plus value of any goodwill or know-how) of the company
         ...
      . 
      
      42.  The Community guidelines on State aid for rescuing and restructuring firms in difficulty lay down certain conditions that
      must be met in order to obtain approval for the aid. It is stated that one essential condition for any restructuring plan
      is that it should guarantee the recovery of the firm concerned and restore its long-term economic and financial efficiency
      within a reasonable time and on the basis of reasonable hypotheses concerning future operating conditions. That means that
      there must be a detailed restructuring plan, that ─ for this to be approved ─ it must be submitted to the Commission, that
      the plan must permit restoration of the firm's competitiveness within a reasonable time and that the improvement in viability
      must in particular be produced by the internal recovery measures in the restructuring plan and can be based on external factors,
      such as higher prices and increased demand, only where market forecasts are widely accepted. And structurally loss-making
      activities must be abandoned.
      
      43.  Those principles are a codification ─ as it were ─ of the earlier case-law of the Court, and they have been confirmed in its
      subsequent case-law. Under this case-law, in ascertaining whether the measure concerned is State aid, account must be taken
      of the recipient undertaking's ability to obtain the relevant amounts of money on the private capital market. Where the shares
      are held almost entirely by public authorities, it must then be examined whether a private shareholder would have made such
      an injection of capital on the basis of the return to be expected, regardless of any consideration of social matters or regional
      or industrial policy.  
      
         			(7)
         		 If it is so then, under the principle of equality of treatment of public and private undertakings, the particular capital
      injection cannot be regarded as State aid.  
      
         			(8)
         		 But, if that is not so, there is State aid.
      
      44.  The conduct of the public investor must therefore be comparable with that of the private investor, but does not necessarily
      have to be the conduct of an ordinary investor, who generally wants a quick return, but it must at least be the conduct of
      a private holding company or a private group of undertakings pursuing a structural policy ─ whether general or sectoral ─
      and guided by prospects of profitability in the longer term.  
      
         			(9)
         		 And where the capital injection is necessary to secure the survival of an undertaking which is experiencing temporary difficulties
      but is capable of becoming profitable again, possibly after a reorganisation, that is not necessarily aid. However, when injections
      of capital by a public investor disregard any prospect of profitability, even in the long term, that is State aid within the
      meaning of Article 87 EC.  
      
         			(10)
         		
      45.  The parties concerned do not dispute the private-investor principle, as understood in a number of Community rules, but, in
      this particular case, they interpret the relevant facts and circumstances differently. It must therefore be examined whether
      the Commission could reasonably determine that the conduct of REL and Friulia was not like that of a private investor when
      they took those investment decisions.
      
      46.  In addition, a substantive economic appraisal is required in order to determine whether one can talk of a private investor
      or, in other words, whether the State has acted  
      like an ordinary businessman and, hence, whether there is State aid within the meaning of Article 87(1). The Commission has wide discretion in this appraisal
      and, according to the Court of First Instance and the Court of Justice, this means that review by the Court of that appraisal
      must be confined to verifying whether the relevant rules governing procedure and the statement of reasons have been complied
      with, whether the facts on which the contested finding was based have been accurately stated and whether there has been any
      manifest error of assessment or a misuse of powers. 
      
         			(11)
         		
      47.  I believe that it follows from this that particular account must be taken of the financial position of the firm and its prospects
      of long-term viability. In the case of a firm in difficulty, as in this instance, it must further be added that there must
      be a detailed, credible and realistic restructuring plan. If there is no such plan, no reasonable investor would still wish
      to invest in such a company.
      
      48.  It is difficult to accept the Italian Government's argument that REL and Friulia were acting in accordance with the private-investor
      principle, considering Seleco's financial position and the prospects for a return to an acceptable level of profitability.
      Except in 1991 and 1992, when a small profit was made, over the decade prior to 1994 the firm reported only cumulated losses.
      It had regularly secured State aids during that period, but no substantial improvements had been achieved: indeed, it can
      be stated that Seleco was completely dependent on State aids. The position at the end of 1993 was in fact so serious ─ cumulated
      losses stood at one-and-a-half times the equity capital ─ that liquidation seemed to be the only rational solution.
      
      49.  A normal private investor brings in capital where there is a reasonable possibility that his invested capital will bring a
      return within a reasonable period or that, as in the present case of a firm in difficulties, there is a reasonable prospect
      that, following restructuring, the firm may return to profitability. For this purpose it is essential to have a detailed,
      credible and realistic restructuring plan; in this instance there was no plan that met those requirements.
      
      50.  The report by KPMG, who were requested by Friulia to study the 1993-1996 restructuring plan, concludes that the Seleco restructuring
      plan was too ambitious because of both the firm's position and the assumptions underlying the plan. Because of the market
      situation (saturated market, fierce price competition and strong adversaries on the demand side of the market holding substantial
      negotiating power), the Commission was able to conclude that the assumptions underlying the business plan were not realistic
      and that Friulia's conduct was not that of a rational private investor.
      
      51.  From those points alone it can be concluded that a rational private investor would not have decided to invest once again in
      Seleco.
      
      52.  To sum up: Seleco was an undertaking in a serious financial position. According to the Community guidelines quoted above,
      public financial intervention in this case is almost always aid.
      
      53.  The Italian Government's argument that private parties had also taken part in the 1994 and 1996 aid operations does not alter
      the fact that this was aid. It has already been stated above that,  
       ex ante , no private investor would have committed capital to the firm. And it may therefore be assumed that those private investors
      were prepared to do so only after the government had adopted new measures of support. It is not relevant how far private investors
      were prepared to take part ─ the point is rather what a private investor would have done had REL and Friulia not been prepared
      to inject new capital. The answer is that he would not have invested, and I see confirmation of that in the original decision
      not to re-capitalise but to liquidate. The Italian Government's argument relates to a point in time after the Italian authorities
      had already announced that they intended to give financial aid. But the course of events was different.
      
      54.  I would also observe that the involvement of private financiers in a financing operation for a firm that is clearly in difficulties
      cannot of itself be taken to show that the public authorities concerned have acted in accordance with the criteria of a private
      investor.
      
      55.  The Italian Government's claim that the Commission used two different criteria for the public and private investors appears
      unsustainable to me. The Commission properly did not regard the loans from the private and public banks as aid, because the
      banks took that decision only after the Italian public authorities had already taken the initiative of a rescue operation.
      That at least gave them a chance of putting their claims, which immediate liquidation would have lost, into safety for the
      time being. And the public banks and the private banks concerned also granted the additional loans on the same terms.
      
      56.  The Italian Government's argument refers to the difference in assessing the loan made by Friulia in 1996, which was regarded
      as State aid, and the bank loans, which were not. I feel that this different assessment is justified by the fact that, at
      that time, Friulia had no claims upon Seleco and also because Friulia, in making the loan to Seleco, was taking an extremely
      risky step whereas the banks, who were already in a vulnerable position, could hope that, by granting a further loan, they
      might be able to recover part of their claims. The bank's conduct can be explained by the desire to protect their own interests
      as far as possible, but the same cannot be said of Friulia. As the Commission rightly observed, in 1996 Friulia was aware
      that, in view of Seleco's precarious position, its convertible loan of ITL 12 billion might never earn an acceptable return.
      It was also aware that, just before that, Seleco's most profitable activities had been transferred to Multimedia. The fact
      that Seleco's shareholders had originally decided to wind it up and that they subsequently decided to go back on that decision,
      probably under pressure from the Italian Government, does not argue in favour of market-compatible conduct which is expected
      from a private investor.
      
      57.  In those circumstances, the Commission was able to conclude that the public interventions concerned could not be described
      as the conduct of a normal private investor and that therefore there was State aid. The Commission has also shown sufficiently
      ─ although the point is not at issue ─ that in this instance the aid was not compatible with the common market, through failure
      to meet the conditions referred to in the Community guidelines on State aid for rescuing and restructuring firms in difficulty
      and, thereby, to comply with Article 87(3) EC.
      
      
      B ─
         The Italian Government's alternative claim (Case C-328/99)
      
      
      
      58.  In the alternative, the Italian Government claims that the part of the contested decision relating to the aid given by REL
      in 1996 should be annulled.It argues that the obligation imposed on REL to repay the ITL 20 billion which it received for relinquishing its claim of
      ITL 65.2 billion and to demand its full claim instead does not make sense. No rational purpose would be served by making the
      full demand.
      
      59.  I can be brief here. Since it has been established that the aid, which largely consists of REL waiving its outstanding claims
      against Seleco, was granted unlawfully, the aid must be cancelled. The Court has consistently held  
      
         			(12)
         		 that abolishing unlawful aid is the logical consequence of a finding that it is unlawful. There is no reason to deviate from
      that principle in bankruptcy proceedings where the interests of the parties involved may be arranged differently.
      
      
      C ─
         The Italian Government's further alternative claim (Case C-328/99) and the claim by SIM 2 Multimedia (Case C-399/00)
      
      
      
      60.  In this part of my Opinion, after briefly setting out the arguments of the parties, I shall firstly examine the question whether
      recovery can be extended to the firm which has continued the activities of the original beneficiary undertaking. Then I shall
      consider whether SIM 2 Multimedia can be regarded as the  
      successor to Seleco Multimedia/Seleco and, lastly, I shall consider the other ─ particularly procedural ─ aspects.Recovery from Multimedia
      
      61.  SIM 2 Multimedia and the Italian Government claim that their right to a fair hearing has been infringed because, during the
      administrative procedure, the Commission did not reveal the possibility of recovery from Multimedia. The discussions between
      the Commission and the Italian authorities had no connection with Italtel's and Friulia's holdings in Multimedia. At no time
      therefore could Multimedia expect to be the recipient of a claim for repayment of the aid granted to Seleco. Furthermore,
      had there been an exchange of arguments on this matter, SIM 2 Multimedia and the Italian Government would have been able to
      show that the price paid for Seleco's multi-media business was in accordance with the market.
      
      62.  SIM 2 Multimedia maintains in addition that the Commission has not shown that the hived-off activities transferred to Seleco
      Multimedia benefited from the aid. To make Seleco and Seleco Multimedia jointly liable is in fact against the spirit of Articles 87
      EC and 88 EC, since the repayment of unlawful aid is not a penalty but a civil-law debt. It is therefore impossible for it
      to have benefited from the operations which took place in 1996, because Multimedia was established as a company prior to the
      re-capitalisation in 1996. A restructuring plan prepared in 1995 in favour of the multi-media business ─ the  
      September 1995 Restructuring Plan ─ was able to show that the multi-media sector did not benefit from the 1994 aid. SIM 2 Multimedia also stresses that Seleco
      Multimedia cannot be regarded as a subsidiary of Seleco, but rather as a project developed with other parties in a new segment
      of the market. In this context, SIM 2 Multimedia explained in its reply that, at the beginning of 1995, Seleco prepared a
      new industrial plan intended to revive the firm, involving concentration of the television-set sector and hiving-off the multi-media
      business by the creation of a separate firm in collaboration with other partners. The search for new investors was followed
      by a statement of intent on 12 December 1995 with Italtel, subsequently extended to Friulia. In this context, the extraordinary
      general meeting of Seleco Multimedia resolved to increase the capital of the firm to ITL 30 billion. On 13 February 1996,
      the Board of Seleco resolved to subscribe to this capital increase by transferring its multi-media business. As a result of
      the agreements which the relevant partners had made on the distribution of holdings, Italtel and Friulia each acquired a third
      of the shares in Seleco Multimedia, while the remainder was taken by a Seleco-controlled company. As part of these operations,
      Seleco Multimedia converted into a  
      società per azioni (joint-stock company). Following the bankruptcy of Seleco, the company took its present name, SIM 2 Multimedia.
      
      63.  Thirdly, SIM 2 Multimedia stresses that a market price ─ ITL 23.415 billion ─ was paid for the multi-media business and that
      the price was set by an independent expert. Even had this multi-media business received aid, that was reflected in the price
      of the Multimedia shares and was therefore returned to Seleco.
      
      64.  SIM 2 Multimedia lastly argues that the decision on recovery is disproportionate because it has to pay the entire amount of
      aid, whilst the multi-media business accounts for less than 10% of Seleco group activity.
      
      65.  On the matter of whether the multi-media business benefited from the aid, the Commission maintains that ─ at least until 18
      July 1996 ─ that business was an integral part of the Seleco group. In support of this, it produces a letter of 28 June 1996
      from the parties concerned to the Italian competition authority stating that at that time Seleco Multimedia was still an integral
      part of Seleco and was wholly controlled by the latter. The Commission also refers to the  
       Boch II   judgment (in Case 40/85  
       Belgium  v
       Commission , cited in footnote 7), where the Court ruled that it was not relevant that a firm should have two divisions of which one
      had produced better trading results than the other and even a very modest profit for the year during which the disputed injection
      of capital had been effected. Both divisions were part of the same undertaking and the nature of the injection in dispute
      must be established in respect of the single undertaking.
      
      66.  The Commission observes that the  
      September 1995 Restructuring Plan was never submitted to it in the course of a formal procedure, and its admissibility is therefore open to question. The Commission
      believes that this plan does not meet the requirements that can be prescribed for a restructuring plan and that it does not
      include measures whereby a profitable strategy can be guaranteed in the future.
      
      67.  The Commission observes here that Seleco's chief assets were transferred to Seleco Multimedia and that the latter benefited
      from the 1994 and 1996 aid, and that those assets were transferred with all debts and claims. Although, formally, the aid
      was granted to Seleco, in effect the entire resources of the company derived benefit from it. As part of the reorganisation,
      Seleco transferred its most profitable assets (decoders, monitors and video-projectors) to Multimedia, thereby disengaging
      from both the capital and the assets. That business was in fact working well and had serious prospects of profit. In view
      of the fact that the most important business assets of the firm ─ together with the benefits obtained through the aid measures
      ─ were transferred to the subsidiary, Seleco Multimedia, that company obviously must be able to accept liability in the place
      of Seleco, the parent company.
      
      68.  This transfer took place during the formal procedure of inquiry and before it was concluded. If a firm in difficulties and
      on the point of bankruptcy were permitted, during the course of a formal procedure of inquiry, to establish a subsidiary with
      the intention that subsequently (prior to the conclusion of the procedure), its most profitable activities would be transferred
      to it, that would open the possibility of every firm removing assets from the resources of the parent company when aid was
      repaid.
      
      69.  To dismantle a firm by selling assets prevents the creditors and/or competitors from selling off the means of production concerned
      or from purchasing them in order to use them more efficiently. Therefore it cannot be permitted that a firm required to repay
      aid obtained unlawfully should remove a part of the assets from its industrial resources and assign them to a subsidiary company
      of the same group.
      
      70.  The Commission also maintains that the price for disposal of the multi-media business was influenced and dictated by the circumstances.
      In other words, in setting the selling price and the value of these assets, the parties must have been aware of the risks
      inherent in a procedure under Article 88(2) EC and, in particular, of a requirement subsequently to repay aid held to be illegal.
      That was a known possibility which could not be ignored, and the parties were aware of this, because the communication of
      initiation of the inquiry procedure was published in the Official Journal (OJ 1994 C 373, p. 5) and Seleco had already been
      aware of it.
      
      71.  In any event, the Commission points out that the selling price is not relevant here, since this is a transfer of shares.
      
      72.  Concerning the alleged lack of proportion between the repayment and the scale of the multi-media business, the Commission
      states that it is technically impossible by means of a detailed analysis to quantify and to identify the extent to which the
      various activities of a firm with a unitary structure and a single management have benefited from illegally granted aid. We
      must not underestimate the risk of an unacceptable delay in the administrative work of the Commission, which does not have
      powers of inquiry over firms to obtain the documents needed.
      
      73.  Concerning the alleged infringement of the right to a fair hearing, the Commission observes firstly that neither the national
      authorities nor the firms concerned have met their duty to cooperate in good faith. Secondly, the Commission considers that
      Multimedia which, from the economic and organisational viewpoint, is the same as Seleco, could not be unaware that it also
      was subject to the obligation of repayment. Thirdly, the Commission stresses that Multimedia was directly named in the communication
      published in 1998 regarding extension to itself of the inquiries. Lastly, the Commission observes that infringement of the
      right to a fair hearing can lead to annulment only where the outcome of the procedure would have been different in the absence
      of that irregularity.Analysis
      
      74.  The Court has consistently held that the recovery of unlawfully-granted aid from the beneficiary undertaking is intended to
      re-establish the previously existing situation.  
      
         			(13)
         		 That objective is attained once the aid in question, plus interest where appropriate, has been repaid by the beneficiary.
      By repaying the aid, the beneficiary forfeits the advantage which it had enjoyed over its competitors on the market, and the
      situation prior to payment of the aid is restored.  
      
         			(14)
         		
      75.  That objective ─ restoration of the earlier situation ─ might be frustrated if, during the course of an administrative procedure
      from which an unfavourable outcome is expected, or following such unfavourable outcome, the beneficiary firm puts the most
      profitable portions of its resources into a  
      safe place.
      
      76.  The question therefore arises whether and, if so, from whom the aid can be recovered if the firm is  
      disposed of. A number of situations may arise.
      
      77.  In the case of a transfer of shares, the solution is quite simple: we find from case-law that, where shares are disposed of,
      the action for revocation follows the  
      undertaking. In other words, the aid is to be recovered from the undertakings which actually benefited from it  
      
         			(15)
         		 and it is not relevant who is holding the shares. Even where shares have been disposed of, it is logical that the right to
      recovery should continue because the undertaking, having changed only the new shareholders, has continued the market activities
      financed with State aid and has enjoyed the benefit of unlawful aid, with the result that competition continues to be distorted.
      
      78.  In my opinion, the following applies where the undertaking has been sold by means of a transaction involving all or part of
      its assets (liabilities).
      
      79.  In the case of a group of legal persons (a holding company) which together comprise an economic unit ─ and thus an undertaking
      ─ the aid obtained can be recovered both upwards and downwards in the parent-subsidiary links between the relevant companies
      within that economic unit, and not only from the  
      beneficiary entity within the group. Any restructuring within that economic unit is not relevant for this purpose.  
      
         			(16)
         		 Incidentally, I should like to observe also that where, in a restructuring, part of the economic activity is transferred
      to a new legal entity as a going concern and subsequently that is transferred in legal and functional terms outside the original
      unit, subject to certain conditions, in my opinion, that new undertaking remains the  
      beneficiary, in particular where it is likely that the activity which it conducts benefited from the aid earlier. It would otherwise
      be easy to evade the practical effect of the control and recovery of State aid unlawfully received by bringing about a restructuring
      within the group either during a procedure or when it is concluded.
      
      80.  Lastly, the situation may arise in which the beneficiary undertaking is partly or wholly disposed of to third parties outside
      the holding company.
      
      81.  Recent case-law has established that, in principle, where a company that has benefited from aid in the past has been sold
      at the market price, the purchase price will reflect the consequences of that earlier aid and the seller of that company keeps
      the benefit of the aid. In such a case, the previous situation is to be restored primarily through repayment of the aid by
      the seller.  
      
         			(17)
         		 Earlier case-law has already ruled similarly where only specific activities have been taken over, provided the market price
      has been paid for them.  
      
         			(18)
         		
      82.  But situations may arise where, in my opinion, the purchasing party also may be required to repay the aid received. This may
      occur where the disposal is effected during the formal inquiry procedure. If the undertaking is transferred as a going concern,
      normally the assets and the liabilities are transferred and the new proprietor of the undertaking must answer for the debts
      and obligations taken over. In that case there may be an obligation to repay aid which is illegal or incompatible with the
      common market and was granted to the transferred undertaking previously. And if the activities of the original beneficiary
      firm are continued with the assets acquired, here too there is a good case for adopting an economic criterion and looking
      for a link with the entity which is continuing the economic activities. For here also activities subsidised with public money,
      with all the consequences which that entails, are still in being. That is the case particularly when the receipts from the
      disposal accrue to the firm which is likely to become bankrupt in the short term. In such a situation, the selling price is
      influenced by that prospect and some of the benefits from the aid operation accrue to the undertaking that has been hived
      off, whereas the owner making the disposal does not derive a corresponding and, probably, permanent benefit from it. Other
      accompanying circumstances may also be relevant here, such as the time at which the transaction takes place (for example,
      whether during the inquiries or not), the identity of the parties to the transaction and the object of the transaction.
      
      83.  If we look at this particular case, we see that Seleco, or at least its most important shareholder, first (in July 1995) established
      a legal entity and then, having in the meantime become the sole shareholder, transferred the main profitable activities to
      it (February/March 1996). Loss-making activities were transferred elsewhere in the group. Both these operations are still
      within the Seleco group. Lastly, some months later, in July 1996, two blocks of shares were sold, one to Friulia (also a shareholder
      in Seleco) and one to Italtel. A third block remained with Seleco through a company controlled by it. This second operation
      related to a transfer of shares whereby Seleco Multimedia was taken out of the Seleco group.From this combination of events we have to deduce that, in anticipation of a bankruptcy that looked almost certain, Seleco
      split the profitable activities from the loss-making activities; in other words, it set up a hive-off vehicle.
      
      84.  Thus there was first a restructuring within the group whereby the healthy portions were transferred to a separate legal entity.
      In my opinion, the Commission has produced sufficient proof that this was a transfer of assets and activities within the same
      group. Those same activities were continued at the same establishment and using the same means of production, the same personnel
      and the same management.It should be observed here that although, in Community law on competition, natural or legal persons legally separate but constituting
      an economic unit are treated as a single undertaking, that does not happen automatically in the case of State aids. This question
      ─ whether there is or is not an economic unit ─ arises in the context of State aids when identifying, among other items, the
      beneficiary of the aid. The Commission has considerable latitude in determining whether companies belonging to a holding company
      are to be regarded as an economic unit or as legally and financially separate undertakings. In this case, the Commission has
      produced sufficient proof that, even after the transfer of the activities to a separate company, there was still a single
      undertaking, and that company is in principle included among the beneficiaries. Even had it concluded otherwise, I believe
      that what I have said at point 79 of this Opinion would hold good in this case.
      
      85.  Shortly after, there was a second operation, that is a transfer of shares. At that point in time, control passed to the new
      shareholders.
      
      86.  In view of the nature of these operations (transfer of assets and activities as a going concern, and subsequent transfer of
      the shares in that company) and in view of the circumstances in which these occurred, I consider ─ in accordance with the
      case-law ─ that SIM 2 Multimedia must repay the aid received. Here I am referring to the case-law cited above, according to
      which aid within a group is to be recovered from the entire group and the sale of shares does not affect the aid received
      by the undertaking as such. What is important here is that these activities were continued unbroken and that both the operations
      took place during the course of a procedure under Article 88(2) EC regarding the aid to the Seleco group as a whole.
      
      87.  The Italian Government and SIM 2 Multimedia have referred to the  
       Alfa Romeo  judgment.  
      
         			(19)
         		 That judgment also related to a disposal to third parties, where the price was set by an independent expert and the operation
      only concerned the hiving off of a small part of the firm. In that case, the aid was recovered not from the purchaser but
      from the vendor. In fact the parallel with the present case is not relevant. Although in that case the Court ruled that Finmeccanica,
      the holding company to which Alfa Romeo belonged at the time of the facts at issue, was to be regarded as the recipient of
      the aid at issue and was therefore required to repay the aid for that reason, the circumstances in which the operation took
      place were different. Firstly, that operation took place long before the Commission had initiated a procedure, so that the
      factor of  
      avoiding the recovery did not arise. Secondly, the entire sale operation was carried out openly and a reasonable price was paid for
      the assets acquired. The sale of Alfa Romeo produced sufficient income to meet the debt arising from the unlawful aid. And,
      in that case, only certain assets were sold and the remaining assets and liabilities remained with Finmeccanica.
      
      88.  I therefore believe that, in certain circumstances, aid can be recovered from the purchaser, particularly where ─ by creating
      a hive-off vehicle during or immediately after initiation (or conclusion) of an inquiry procedure under Article 88(2) EC ─
      the most profitable parts of the firm are hived off for subsequent sale.
      
      89.  The Commission has produced sufficient proof that that occurred in this instance.Rights of the defence
      
      90.  The parties claim infringement of their defence rights, because they have not been heard, because the Commission has not shown
      that Multimedia did actually benefit from the aid and because the recovery is disproportionate.
      
      91.  The Court has consistently held that the right to a fair hearing is an essential element of the procedure on State aids. 
      
      
         			(20)
         		 This right applies primarily to the Member State, since the procedure is between the Commission and the Member State, but
      it does not mean that no account is to be taken of the other parties concerned. Article 88(2) EC provides that the Commission
      shall adopt a decision  
      after giving notice to the parties concerned to submit their comments. The Court has consistently held that the publication of a notice in the Official Journal is sufficient for this purpose.
       
      
         			(21)
         		 I cannot agree therefore with the complaint made by SIM 2 Multimedia that its rights to a fair hearing have been infringed.
      It had an opportunity to be heard. Firstly, it had the opportunity of doing so following the notices published in the Official
      Journal, for it was among those concerned. Secondly, it could of its own initiative have submitted documents or comments that
      might assist the Commission in reaching a final decision. But it did not avail itself of either opportunity.
      
      92.  SIM 2 Multimedia's argument that the Commission should have sent it a copy of the decision to extend the inquiry cannot be
      accepted. Here it is referring, among other things, to the procedural rules applying in Community competition law, where the
      parties can submit their arguments regarding the  
      statement of objections. As has been stated earlier, the procedure under Article 88(2) EC provides that the Commission takes a decision on the aid
      measures  
      after giving notice to the parties concerned to submit their comments. Article 88(2) does not prescribe that notice be addressed to individuals. A notice published in the Official Journal is
      sufficient to advise all parties concerned that the procedure has been initiated. Council Regulation (EC) No 659/1999 of 22
      March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty  
      
         			(22)
         		 has not modified this. Article 20 of that Regulation indeed lays down that any beneficiary of individual aid (or any interested
      party which has submitted comments) shall be sent a copy of the decision taken by the Commission, but that relates to the
      final decision (
      taken by the Commission pursuant to Article 7) and not to the decision to initiate the procedure. Therefore I cannot agree with SIM 2 Multimedia that the Commission should
      have informed it individually.
      
      93.  The argument that it could not have expected that it might have to repay the aid cannot be accepted. It is common knowledge
      that aid held to be unlawful or incompatible with the common market can be recovered. All the parties were also aware that
      a formal procedure of inquiry was under way regarding the aid granted to Seleco in 1994. That applies not only to the Italian
      State but also to the undertaking receiving the aid, Seleco ─ later Seleco Multimedia (part of the Seleco group) and finally
      SIM 2 Multimedia ─ and to the shareholders in SIM 2 Multimedia, Friulia (also a shareholder in Seleco) and Italtel. As for
      the fact that Italtel did not know this at the beginning, we may surely assume that it learned of it in the course of the
      negotiations on association, or that it came to light during the  
      due diligence inquiries proper to such operations. Each party therefore was able to take account of a possible demand. In 1998, the inquiry
      was extended to the aid granted to Seleco in 1996. Here also a notice was published in the Official Journal, again explicitly
      stating that any unlawful aid could be recovered from the beneficiary firm. In any case, neither in 1994 nor in 1998 did any
      of those concerned spontaneously submit comments or contact the Commission services.
      
      94.  Lastly, as the Commission has also observed, any infringement of the right to a fair hearing can result in an annulment only
      if the outcome of the procedure could have been different in the absence of such irregularities. The documents submitted and
      explained by SIM 2 Multimedia do not suggest that the outcome would have been different.
      
      95.  I therefore consider that the plea regarding infringement of defence rights is unfounded.Proportionality
      
      96.  SIM 2 Multimedia has maintained that the Commission has not proved that it benefited from the aid and furthermore that, even
      if it has, it is not fair that it should repay all the aid received by Seleco.
      
      97.  I consider that the Commission has sufficiently proved that the  
      multi-media business profited from the aid operations. Firstly, as the Commission observes, Seleco Multimedia was ─ at least until 18 July 1996
      ─ part of Seleco. At least up to that date, therefore, it profited from the aid granted to Seleco. It can even be maintained
      that it owes its very existence to the aid because, without the 1994 re-capitalisation, it would have been wound up: the fact
      that the figures for this division show a better picture in no way alters the position. And SIM 2 Multimedia's argument that
      it did not benefit from the 1996 aid, because the convertible loan was made in May 1996 and the re-capitalisation occurred
      in June 1996, is unsustainable. As the Commission has rightly observed, without a denial from SIM 2 Multimedia, that aid operation
      was to cover the losses made in 1994 and 1995 and was thus retrospective aid for a period in which Seleco had not yet hived
      off its multi-media activities ─ not aid for the future, such as, for example, investment aid.
      
      98.  SIM 2 Multimedia argues that it would be disproportionate for it to have to repay the whole of the aid, because the multi-media
      business generated only 10% of total turnover.
      
      99.  As stated before, we have here a hive-off vehicle whereby the more viable and less viable businesses have been split and,
      shortly afterwards, the less viable parts would be allowed to die. In such a situation we may consider that not only the assets
      of the healthy part have been transferred but also its economic activities. The Commission has produced sufficient proof of
      this also. In such a case, the Commission may demand that all of the aid be recovered from that firm.
      
      100.  Finally, the fact that ─ as the parties maintain ─ they have paid a reasonable price for the shares in that company is not
      relevant, because this transfer is of shares and not of assets or of assets-and-liabilities.Duty of the Italian State to effect recovery
      
      101.  In conclusion, I wish to examine further the objection raised by the Italian Government and by SIM 2 Multimedia regarding
      the Commission's power to require Italy to recover the aid from  
      Seleco Multimedia srl and any other firm which benefited from asset transfers. The Italian Government has also pointed out that, under Italian legislation, it has no status to recover sums which are
      not taken into account in the conditions of sale. Furthermore, this would be a debt under private law.
      
      102.  I consider that it follows from what has been stated above that, in certain conditions, repayment is not confined to the original
      beneficiary firm but may be extended to that firm which has continued the activities with the means of production transferred.
      From this it follows that, in order to avoid the risk of non-implementation of its decision on recovery, the Commission may
      also require that a Member State must take all necessary measures to recover from the  
      original beneficiary and if necessary from the latter's  
      successors. In other words, it may instruct the Member State to act not only against Seleco but also against the firm which has continued
      the activities with the assets transferred.
      
      103.  Next, the Member State concerned has the duty of proceeding to recover the unlawful aid immediately. To that end, the Member
      State must make use of all possible legal resources open to it. This follows not only from the case-law; it is now also codified
      in Regulation No 659/1999.Contrary to what SIM 2 Multimedia and Italy maintain, there is no infringement here of Article 14 of Regulation No 659/1999.
      The Commission has determined only that the amount must be recovered, that if Seleco has insufficient funds it must be recovered
      additionally from Seleco Multimedia Srl (now SIM 2 Multimedia) or any other firm to which the assets were transferred, and
      that (see points 113 and 114 of the contested decision) Italy must act energetically to that end using all the legal means
      at its disposal, like a diligent private creditor.
      
      104.  Concerning observations made by the Italian Government that, under Italian legislation, it is not possible to recover these
      amounts from SIM 2 Multimedia, it should be observed that the Court has consistently held that any procedural or other difficulties
      in regard to the implementation of the decision have no influence on the lawfulness of the decision.  
      
         			(23)
         		 The Court has also already stated that, even if in Italian law it is not possible to recover sums which were not taken into
      account in the conditions of sale of the undertaking, that cannot stand in the way of the full application of Community law
      and can therefore have no effect on the obligation to recover the aid in question.  
      
         			(24)
         		  V ─ Conclusion
      
      105.  In the light of the foregoing, I suggest that the Court should reject the applications and, in accordance with Article 69(2)
      of the Rules of Procedure, order the applicants jointly and severally to bear the costs.
      
       1 –
         
           Original language: Dutch.
      
      2 –
         
         OJ 2000 L 227, p. 24.
      
      3 –
         
         OJ 1994 C 368, p. 12. These guidelines have since been replaced by a new communication, published in OJ 1999 C 288, p. 2.
      
      4 –
         
         Bulletin EC 9-1984.
      
      5 –
         
         Cited in footnote 3.
      
      6 –
         
         Cited in footnote 4 and in footnote 3, respectively.
      
      7 –
         
         See, among others, the judgments in Joined Cases 296/82 and 318/82  
             Netherlands and Leeuwarder Papierwarenfabriek  v
             Commission  [1985] ECR 809; in Case 234/84  
             Belgium   v  
             Commission   (
             Meura ) [1986] ECR 2263; in Case 40/85  
             Belgium   v  
             Commission   (
             Boch II ) [1986] ECR 2321; and in Case C-301/87  
             France   v
             Commission   (
             Boussac ) [1990] ECR I-307.
         
      
      8 –
         
         Judgment in Case C-303/88  
             Italy   v  
             Commission   (
             ENI-Lanerossi ) [1991] ECR I-1433, at paragraph 20.
         
      
      9 –
         
         Judgment in Case C-305/89  
             Italy   v
             Commission   (
             Alfa Romeo ) [1991] ECR I-1603, at paragraph 20.
         
      
      10 –
         
         See judgment in Case C-303/88 (cited at footnote 8), at paragraphs 21 and 22.
      
      11 –
         
         See, for example: the judgment in Case C-56/93  
             Belgium   v
             Commission  [1996] ECR I-723, at paragraph 11, and the case-law cited there; the judgment of the Court of First Instance in Case T-358/94
             
             Air France  v  
             Commission  [1996] ECR II-2109, at paragraph 71; and the judgment in Case C-288/96  
             Germany   v
             Commission   [2000] ECR I-8237, at paragraph 26, and the case-law cited there.
         
      
      12 –
         
         Judgment in Case 310/85  
             Deufil  v
             Commission  [1987] ECR 901; judgment in Case 142/87  
             Belgium  v
             Commission   (
             Tubemeuse ) [1990] ECR I-959, at paragraph 66; judgement in Case C-169/95  
             Spain   v
             Commission  [1997] ECR I-135, at paragraph 47.
         
      
      13 –
         
         See judgments in Joined Cases C-278/92, C-279/92 and C-280/92  
             Spain   v
             Commission  [1994] ECR I-4103, at paragraph 75, and in Case C-350/93  
             Commission   v
             Italy  [1995] ECR I-699.
         
      
      14 –
         
         Judgment in Case C-350/93  
             Commission  v  
             Italy  (cited in footnote 13), at paragraph 22.
         
      
      15 –
         
         Judgment in Case C-303/88  
             Italy   v
             Commission   (
             ENI-Lanerossi ) (cited in footnote 8), at paragraph 57.
         
      
      16 –
         
         Judgments in Case 323/82  
             Intermills  v
             Commission  [1984] ECR 3809 and in Case C-303/88  
             Italy   v
             Commission   (
             ENI-Lanerossi ) (cited in footnote 8).
         
      
      17 –
         
         Judgment in Case C-390/98  
             HJ Banks  [2001] ECR I-6117, at paragraph 78.
         
      
      18 –
         
         Judgment in Case C-305/89  
             Italy   v
             Commission   (
             Alfa Romeo ), cited in footnote 9.
         
      
      19 –
         
         Judgment in Case C-305/89  
             Italy   v
             Commission   (
             Alfa Romeo ), cited in footnote 9.
         
      
      20 –
         
         See, among others, the judgments in Case C-301/87  
             France   v
             Commission   (
             Boussac ) (cited in footnote 7), in Case 40/85  
             Belgium   v
             Commission  (
             Boch II ) (cited in footnote 7) and in Case 259/85  
             France   v
             Commission  [1987] ECR 4393.
         
      
      21 –
         
         See, among others, the judgment in Case 323/82  
             Intermills  v
             Commission  (cited in footnote 16), at paragraphs 16 and 17.
         
      
      22 –
         
         OJ 1999 L 83, p. 1.
      
      23 –
         
         Judgment in Case 142/87  
             Belgium  v
             Commission   (
             Tubemeuse ) (cited in footnote 12).
         
      
      24 –
         
         Judgment in Case C-303/88  
             Italy   v
             Commission   (
             ENI-Lanerossi ) (cited in footnote 8).