Italian Republic and SIM 2 Multimedia SpA v Commission of the European Communities.
Date: 2003-05-08
33.  The financial resources of a private-law company such as Friulia, 87% of which is held by a public authority such as the Region of Friulia-Venezia Giulia and which acts under the control of that authority, may be regarded as State resources within the meaning of Article 87(1) EC (see, to that effect, Case 323/82   Intermills   v   Commission   [1984] ECR 3809, paragraph 32, and Joined Cases 67/85, 68/85 and 70/85   Van der Kooy   v   Commission   [1988] ECR 219, paragraphs 36 and 38).  The fact that Friulia participated using its own funds is irrelevant in that regard.  For those funds to be categorised as State resources, it is sufficient that, as in the present case, they constantly remain under public control and therefore available to the competent national authorities (see, to that effect, Case C-482/99   France   v   Commission   [2002] ECR I-4397, paragraph 37).
35.  Next, it must be borne in mind that the aim of Article 87 EC is to prevent trade between Member States from being affected by advantages granted by public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or certain products.  The notion of aid can thus encompass not only positive benefits such as subsidies, loans or direct investment in the capital of enterprises, but also interventions which in various forms mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect (see Case 234/84   Belgium   v   Commission   [1986] ECR 2263, paragraph 13, and Case C-39/94   SFEI and Others   [1996] ECR I-3547, paragraph 58).
36.  It is settled case-law that investment by the public authorities in the capital of an undertaking, in whatever form, may constitute State aid where all the conditions set out in Article 87(1) EC are fulfilled (see, in particular, Case C-142/87   Belgium   v   Commission   ( "Tubemeuse "  ) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92   Spain   v   Commission   [1994] ECR I-4103, paragraph 20, and   France   v   Commission  , cited above, paragraph 68).
37.  It should also be noted that, pursuant to the principle that the public and private sectors are to be treated equally, capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid (Case C-303/88   Italy   v   Commission   [1991] ECR I-1433, paragraph 20).
38.  Therefore, in accordance with equally settled case-law, it is necessary to determine whether, in similar circumstances, a private investor of a dimension comparable to that of the bodies managing the public sector could have been prevailed upon to make capital contributions of the same size (Case C-261/89   Italy   v   Commission   [1991] ECR I-4437, paragraph 8;   Spain   v   Commission  , cited above, paragraph 21; and Case C-42/93   Spain   v   Commission   [1994] ECR I-4175, paragraph 13), having regard in particular to the information available and foreseeable developments at the date of those contributions (France   v   Commission  , paragraph 70).
39.  Since that involves a complex economic appraisal, in reviewing an act of the Commission which has necessitated such an appraisal, the Court must confine itself to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, 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 (see   inter alia   Case C-56/93   Belgium   v   Commission   [1996] ECR I-723, paragraph 11).
44.  It follows from the foregoing that, as regards the recapitalisation of Seleco in 1994, neither Friulia nor REL acted like a private investor operating under normal market conditions.  A private investor would not, under those conditions, have made the capital contributions made by Friulia or REL to an undertaking in difficulty such as Seleco without having a credible and realistic restructuring plan or taking social concerns into account (see, as regards the latter point, Case C-303/88   Italy   v   Commission  , cited above, paragraphs 18 and 24), and thus not seeking to ensure the likelihood of profitability for such contributions.
53.  In that respect, it must be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular,   Tubemeuse  , cited above, paragraph 66, and Case C-261/99   Commission   v   France   [2001] ECR I-2537, paragraph 22).
54.  Accordingly, since the repurchase in 1996 by Seleco of its outstanding debt to REL of ITL 65.2 billion for ITL 20 billion constitutes unlawful State aid, the Commission is entitled to order the Italian Republic to take the necessary measures to recover it (see, to that effect, Case 310/85   Deufil   v   Commission   [1987] ECR 901, paragraph 24).
65.  As a preliminary observation, it should be pointed out that, in accordance with Community law, when the Commission finds that aid is incompatible with the common market, it may order the Member State to recover that aid from the recipient (Case 70/72   Commission   v   Germany   [1973] ECR 813, paragraph 20).
66.  The recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see   Tubemeuse  , paragraph 66) and seeks to re-establish the previously existing situation (Case C-382/99   Netherlands   v   Commission   [2002] ECR I-5163, paragraph 89).
78.  Thus the Commission pointed out at points 116 and 117 of the grounds of the contested decision that:
─  in order to prevent the effectiveness of the decision to recover the aid from being frustrated and the market from continuing to be distorted, the Commission may be compelled to require that the recovery is not restricted to the original firm but is extended to the firm which continues the activity of the original firm, using the transferred means of production, in cases where certain elements of the transfer point to economic continuity between the two firms;
─  the elements examined by the Commission include 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 moment at which the transfer was carried out (after the start of the investigation, the initiation of the procedure or the final decision) and, lastly, the economic logic of the transaction.
83.  As regards the second statement, while it is correct that the sale of shares in a company which is the beneficiary of unlawful aid by a shareholder to a third party does not affect the requirement for recovery, the situation at issue here is different from that case.  It involves the sale of Multimedia shares by Seleco, which created that company, and whose assets benefit from the sales price of the shares. Therefore, it cannot be excluded that Seleco retained the benefit of the aid received from the sale of its shares at market price (see, to that effect, Case C-390/98   Banks   [2001] ECR I-6117, paragraphs 77 and 78).