Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1.
Date: 2005-12-15
45. Aid may be selective in the light of that provision even where it concerns a whole economic sector (see, in particular, Case C-75/97 Belgium  v Commission  [1999] ECR I-3671, paragraph 33).
47. In addition, within the banking sector it benefits only undertakings which carry out the operations referred to.
48. Without it being necessary to determine in addition whether, as stated by the Commission in point 33 of the grounds of the contested decision, the tax reduction is more advantageous to large undertakings, it is therefore clear that that measure is selective in relation to other economic sectors and within the banking sector itself.
49. Since it does not apply to all economic operators, it cannot be considered to be a general measure of tax or economic policy.
50. It is in fact a departure from the ordinary tax scheme. The undertakings concerned enjoy tax relief to which they would not be entitled under the normal application of that scheme and to which undertakings in other sectors which carry out similar operations, or undertakings in the banking sector which do not carry out operations such as those referred to, are not entitled.
51. The tax reduction is not justified by the nature and overall structure of the tax system in question (see, by way of analogy, Case 173/73 Italy  v Commission  [1974] ECR 709, paragraph 33). It is not an adaptation of the general scheme to the particular characteristics of banking undertakings. It is apparent from the documents before the Court that it was put forward expressly by the national authorities as a means of improving the competitiveness of certain undertakings at a certain stage in the development of the sector.
54. In its assessment of those two conditions, the Commission is required, not to establish 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-372/97 Italy  v Commission  [2004] ECR I-3679, paragraph 44).
56. In particular, 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 affected by that aid (see, in particular, Case 730/79 Philip Morris  v Commission  [1980] ECR 2671, paragraph 11; Case C‑53/00 Ferring  [2001] ECR I-9067, paragraph 21; and Case C-372/97 Italy  v Commission , cited above, paragraph 52).
57. In that regard, the fact that an economic sector has been liberalised at Community level is an element which may serve to determine that the aid has a real or potential effect on competition and on trade between Member States (see Case C‑409/00 Spain  v Commission  [2003] ECR I‑1487, paragraph 75).
58. In addition, it is not necessary that the beneficiary undertaking itself be involved in intra-Community trade. Aid granted by a Member State to an undertaking may help to maintain or increase domestic activity, with the result that undertakings established in other Member States have less chance of penetrating the market of the Member State concerned (see, to that effect, in particular, Case C-310/99 Italy  v Commission  [2002] ECR I-2289, paragraph 84). Furthermore, the strengthening of an undertaking which, until then, was not involved in intra-Community trade may place that undertaking in a position which enables it to penetrate the market of another Member State.
60. Furthermore, the financial services sector has been involved in an important liberalisation process at Community level, enhancing the competition that may already have resulted from the free movement of capital provided for in the EC Treaty.
67. In the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies (see, in particular, Joined Cases C‑15/98 and C-105/99 Italy and Sardegna Lines  v Commission  [2000] ECR I‑8855, paragraph 51, and Case C‑278/00 Greece  v Commission  [2004] ECR I‑3997, paragraph 24), in order to determine whether that scheme comprises aid elements.
71. The Court makes the preliminary observation that for the purposes of applying Article 87(3) EC the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context. The Court, in reviewing whether that freedom was lawfully exercised, cannot substitute its own assessment in the matter for that of the competent authority but must confine itself to examining whether the authority’s assessment is vitiated by a manifest error or by misuse of powers (see Case C-456/00 France  v Commission  [2002] ECR I-11949, paragraph 41, and the case-law cited).
(i) The meaning of ‘aid to promote the execution of an important project of common European interest’
99. The requirements to be satisfied by the statement of reasons laid down in Article 253 EC depend, in principle, on the circumstances of each case, in particular on the content of the measure in question, the nature of the reasons given and the interest which its addressee may have in obtaining explanations. However, in the matter of State aid, where, contrary to the provisions of Article 88(3) EC, the aid has already been granted, the Commission, which has the power to require the national authorities to order repayment, is not obliged to provide specific reasons in order to justify the exercise of that power (case-law cited above: Belgium  v Commission , paragraphs 81 and 82; Case C-310/99 Italy  v Commission , paragraph 106; and Case C-372/97 Italy  v Commission , paragraph 129).
104. In view of the mandatory nature of the review of State aid by the Commission under Article 88 EC, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article and, second, a diligent businessman should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, so that it is unlawful under Article 88(3) EC, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (Joined Cases C-183/02 P and C-187/02 P Demesa and Territorio Histórico de Álava  v Commission  [2004] ECR I-10609, paragraphs 44 and 45, and the case-law cited). Neither the Member State in question nor the operator involved can plead the principle of legal certainty either, in order to prevent recovery of the aid, since the risk of national proceedings, as claimed by Unicredito, was foreseeable from the moment that the aid was implemented.
105. It is common ground that the measures contained in Law No 218/90 were never notified to the Commission. Therefore, as regards the allegation that the measure provided for in Article 7(3) of that law was very similar to the tax reduction, it is sufficient to note that that measure was not examined by the Commission. In that context, the time which has elapsed since the adoption of that law, as pleaded by Unicredito, is irrelevant. In addition, even supposing that the two successive measures are, as suggested by the national tribunal, related, the one being a continuation and extension of the other, the fact that the Commission took no action regarding the first is immaterial, since the system at issue in the current proceedings, viewed independently of its predecessor, favours certain undertakings (see, to that effect, Case 57/86 Greece  v Commission  [1988] ECR 2855, paragraph 10).
111. In the light of the above considerations, Unicredito cannot therefore claim that the recipient of unlawful aid may rely on exceptional circumstances on the basis of which it might legitimately have expected the aid to be lawful (see Demesa and Territorio Histórico de Álava  v Commission , cited above, paragraph 51).
113. The withdrawal of unlawful aid by recovery is the logical consequence of the finding that it is unlawful. That recovery for the purpose of re-establishing the previously existing situation cannot, in principle, be regarded as disproportionate to the objectives of the Treaty provisions on State aid. By repaying, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (Case C-372/97 Italy  v Commission , cited above, paragraphs 103 and 104, and the case-law cited).
118. That does not imply reconstructing past events differently on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, since the choices actually made with the aid might prove to be irreversible.
119. Re-establishing the status quo ante merely enables account to be taken, at the stage of recovery of the aid by the national authorities, of tax treatment which may be more favourable than the ordinary treatment which, in the absence of unlawful aid and in accordance with domestic rules which are compatible with Community law, would have been granted on the basis of the operation actually carried out.