HaTeFo GmbH v Finanzamt Haldensleben.
Date: 2014-02-27
30. Thus, the SME Recommendation must be interpreted by taking into account the reasons for its adoption (see, by analogy, Case C‑91/01 Italy  v Commission [2004] ECR I‑4355, paragraph 49).
31. In that regard, it is apparent from recitals 9 and 12 of the preamble to that recommendation that the definition of linked enterprises aims to gain a better understanding of the economic position of SMEs and to remove from that qualification of SMEs groups of enterprises whose economic power may exceed that of genuine SMEs, with a view to ensuring that only those enterprises which really need the advantages accruing to the category of SMEs from the different rules or measures in their favour actually benefit from them. Those recitals also state that in order to limit to the strict minimum the examination of relations between enterprises which pass through natural persons, the account taken of such relationships must be restricted to cases where those enterprises engage in activities in the relevant market or in adjacent markets.
32. The advantages afforded to SMEs are in most cases exceptions to the general rules, such as for example in the area of State aid, and therefore the definition of an SME must be interpreted strictly.
33. In those circumstances, in order to include only enterprises that are genuinely independent SMEs, it is necessary to examine the structure of SMEs which form an economic group, the power of which exceeds the power of an SME, and to ensure that the definition of SMEs is not circumvented by purely formal means (see Italy  v Commission , paragraph 50).
34. Therefore the fourth subparagraph of Article 3(3) of the Annex to the SME Recommendation must be interpreted in the light of that objective, so that enterprises which do not formally have one or other of the relationships referred to in paragraph 28 above, but which, because of the role played by a natural person or group of natural persons acting jointly, nevertheless constitute a single economic unit, must also be regarded as linked enterprises for the purposes of that provision, since they engage in their activities or in part of their activities in the same relevant market or in adjacent markets (see, by analogy, Italy  v Commission , paragraph 51).
35. Moreover, the condition that natural persons are acting jointly is satisfied where those persons work together in order to exercise an influence over the commercial decisions of the enterprises concerned which precludes those enterprises from being regarded as economically independent of one another. Whether that condition is satisfied depends on the circumstances of the case, and that is not necessarily conditional on the existence of contractual relations between those persons or even a finding that they intended to circumvent the definition of an SME.
39. It follows from all of the above considerations that the answer to the questions referred is that the fourth subparagraph of Article 3(3) of the Annex to the SME Recommendation must be interpreted as meaning that enterprises may be regarded as ‘linked’ for the purposes of that article where it is clear from the analysis of the legal and economic relations between them that, through a natural person or a group of natural persons acting jointly, they constitute a single economic unit, even though they do not formally have any of the relationships referred to in the first subparagraph of Article 3(3) of that annex. Natural persons who work together in order to exercise an influence over the commercial decisions of the enterprises concerned which precludes those enterprises from being regarded as economically independent of each other are to be regarded as acting jointly for the purposes of the fourth subparagraph of Article 3(3) of that annex. Whether that condition is satisfied depends on the circumstances of the case and is not necessarily conditional on the existence of contractual relations between those persons or a finding that they intended to circumvent the definition of a micro, small or medium-sized enterprise within the meaning of that recommendation.
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