Commission of the European Communities v Italian Republic and Wam SpA.
Date: 2009-04-30
33. Next, it must be noted that the obligation to provide a statement of reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, the latter being concerned with the substantive legality of the measure at issue (see to that effect, Case C‑310/99 Italy  v Commission  [2002] ECR I‑2289, paragraph 48). Since the objective of the Commission’s single ground of appeal is precisely to contest the legal analysis of the obligation of the Court of First Instance to provide a statement of reasons, the Commission cannot be criticised for inviting the Court of Justice to re-examine the substance of the contested decision.
48. According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the Court to carry out its review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C‑88/03 Portugal v Commission  [2006] ECR I‑7115, paragraph 88 and the case-law cited).
49. Applied to the classification of a measure as aid, that principle requires a statement of the reasons for which the Commission considers that the measure concerned falls within the scope of Article 87(1) EC. In that regard, even in cases where it is apparent from the circumstances under which it was granted that the aid is liable to affect trade between Member States and to distort or threaten to distort competition, the Commission must at least set out those circumstances in the statement of reasons for its decision (see Portugal v Commission , paragraph 89 and the case-law cited).
50. In that context, it should be noted that, also according to settled case-law, for the purpose of categorising a national measure as State aid, it is not necessary to demonstrate that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 140 and the case-law cited).
51. With regard more specifically to the condition that trade between Member States be affected, it follows from the case-law that the grant of aid by a Member State, in the form of a tax relief, to some of its taxable persons must be regarded as likely to have an effect on trade and, consequently, as meeting that condition, where those taxable persons perform an economic activity in the field of such trade or it is conceivable that they are in competition with operators established in other Member States (see Portugal v Commission , paragraph 91, and Case C‑172/03 Heiser  [2005] ECR I‑1627, paragraph 35).
52. Furthermore, the Court has held that, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as influenced by that aid ( Cassa di Risparmio di Firenze and Others , paragraph 141 and the case-law cited).
53. In that regard, the fact that an economic sector has been liberalised at Community level may serve to determine that the aid has a real or potential effect on competition and affects trade between Member States ( Cassa di Risparmio di Firenze and Others , paragraph 142 and the case-law cited).
54. With regard to the condition of the distortion of competition, it should be borne in mind in that regard that, in principle, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (see Case C‑156/98 Germany  v Commission  [2000] ECR I‑6857, paragraph 30, and Heiser , paragraph 55).
57. In light of the specific circumstances of the case, the Court of First Instance did not err in law by holding, in paragraph 63 of the judgment under appeal, that the Commission is, in particular, obliged to examine whether the aid at issue is liable to affect trade between Member States and to distort competition, giving information relevant to their likely effects in the contested decision.
64. It follows from the above that the Court of First Instance, when it held in substance in paragraphs 62 to 76 of the judgment under appeal that the Commission should have carried out a more detailed analysis of the potential consequences of the aid at issue on intra-Community trade and on competition and should have given additional information, in the contested decision, concerning those effects, did not intend to depart from the case-law cited above but to take into account the specific circumstances of the case, and it cannot be accused of erring in law in this respect.