Keywords
Summary

Keywords

1. State aid - Definition - Aid from State resources - Aid granted by a public undertaking - Resources of the undertaking constantly under public control - Included

(Art. 87(1) EC)

2. State aid - Definition - Aid granted by a public undertaking - Undertaking controlled by the State - Imputability of the aid measure to the State - Exclusion - Set of indicators to be taken into consideration

(Art. 87(1) EC)

3. State aid - Definition - Assessment on the basis of the private investor criterion - Context of the period in which financial support granted to be taken into consideration

(Art. 87(1) EC)

Summary

1. The expression State resources in Article 87(1) EC covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to a State aid measure are financial resources of public undertakings and are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources.

That is the case where the State is perfectly capable, by exercising its dominant influence over public undertakings, of directing the use of their resources in order, as occasion arises, to finance specific advantages in favour of other undertakings.

( see paras 37-38 )

2. The condition that, for a measure to be capable of being classified as State aid within the meaning of Article 87(1) EC, it must be imputable to the State, cannot be interpreted in such a way that such imputability is inferred from the mere fact that that measure was taken by a public undertaking controlled by the State. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. It is thus necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of that measure.

In that respect, the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators such as, in particular, its integration into the structures of the public administration, the nature of its activities and the exercise of the latter on the market in normal conditions of competition with private operators, the legal status of the undertaking (in the sense of its being subject to public law or ordinary company law), the intensity of the supervision exercised by the public authorities over the management of the undertaking, or any other indicator showing, in the particular case, an involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains.

( see paras 51-52, 55-56 )

3. In order to determine whether investment by the public authorities in the capital of an undertaking, in whatever form, may constitute State aid within the meaning of Article 87(1) EC, it is necessary to assess 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, having regard in particular to the information available and foreseeable developments at the date of those contributions.

In order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the State's conduct, and thus to refrain from any assessment based on a later situation.

( see paras 68, 70-71 )