Opinion of Mr Advocate General Van Gerven delivered on 11 October 1990

1 Original language Dutch

2 OJ 1989 L 16. p. 52

3 Contested decision, Part I, first paragraph

4 Contested decision, Part I, second and third paragraphs

5 Contested decision, Part I, third and fourth paragraphs.

6 Contested decision, Pan I, sixth paragraph. It may be noted that in the same letter the defendant informed the applicant that in respect of another of Lanerossi's subsidiaries in the same sub-sector, namely Lebole SpA, the assistance which it had received in the form of compensation for losses was matched by restructuring efforts already implemented and to be implemented shortly afterwards, with the result that the aid granted could benefil from the derogation in Article 92(3)(c) (contested decision, Part I, fifth paragraph).

7 Contested decision, Part I, sixth paragraph.

8 Contested decision, Part I, seventh paragraph.

9 Contested decision, Part I, eighth paragraph.

10 Contested decision, Pan I, ninth paragraph.

11 Contested decision, Part I, tenth paragraph. The applicant has so far failed to produce, at the Court's request, a copy of that letter, whose contents it does not dispute, with the result that the form in which it is reproduced in the decision may be considered accuraie.

12 Contested decision, Part II, first and second paragraphs

13 Contested decision, Part III, first paragraph

14 Contested decision, Part III, third paragraph

15 Contested decision, Part III, fourth and fifth paragraphs

16 Contested decision, Part III, sixth paragraph

17 Contested decision, Part III, eighth paragraph.

18 Contested decision, Part III, ninth paragraph

19 Contested decision, Part III, tenth and twelfth paragraphs.

20 Contested decision, Part III, tenth and twelfth paragraphs.

21 Contested decision, Part III, tenth paragraph.

22 Contested decision, Part IX, fourth paragraph.

23 Contested decision, Part III, sixth and twelfth paragraphs; and Part VII, seventh, tenth, eleventh and twelfth paragraphs.

24 Case 290/83 [1985] ECR 439, at paragraph 14. See also the judgment in Case 57/86 Greece v Commission [1988] ECR 2855, at paragraph 12

25 judgment in Joined Cases 67, 68 and 70/85 Van der Kooy v Commission [1988] ECR 219, at paragraphs 36 and 37.

26 Article 12 of Law No 136 of 10 February 1953 setting up the ENI (Official Gazette of the Italian Republic No 72 of 27 March 1953), as frequently amended, inrer alia by Law No 1153 of 14 November 1967 (Official Gazette of the Italian Republic No 310 of 13 December 1967)

27 In the Meura case (Case 234/84 Belgium v Commission [1986] ECR 2263) the role of the public investment company SRIW as a channel for State aid in the form of the acquisition of capital holdings was not even called in question.

28 Article 7 of Law No 136, cited above.

29 Report of the Italian parliamentary experts' committee on State holdings (known as the Chiarelli Committee), No 19, second paragraph, published in Foro Amministrativo II (1975) p. 653, at p. 666.

30 During the written procedure and at the hearing the defendant referred to the publication in Official Gazette of the Italian Republic No 6 of 9 January 1986, at p. 40, of a decision of the Comitato Interministeriale per la Programmazione Economica of 28 November 1985. The applicant objected to the examination of that measure because it is not mentioned in the contested decision and was referred to only in the written procedure. However, its existence cannot be disputed.

31 Part IV of the contested decision.

32 Bulletin EC 9-1984, pp. 98 to 100; reference in the Fourteenth Report on Competition Policy, 1984, point 198.

33 Judgment in Case 323/82 Intermills v Commission (1984] ECR 3809, at paragraph 31

34 Judgment in Joined Cases 296 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809.

35 Judgment in Case 234/84 Belgium v Commission [1986] ECR 2263, at paragraphs 14 to 17

36 See the judgment in Case C-142/87 Belgium v Commission [1990] ECK I-959, at paragraphs 26 to 30, and the judgment in Case C-301/87 France v Commission [1990] ECR I-307, at paragraphs 38 to 41 and 54.

37 Contested decision, Part II.

38 Judgment in Case 234/84 Belgium v Commission [1986] ECR 2263, at paragraph 14.

39 Council Regulation (EEC) No 219/84 of 18 January 1984 instituting a specific Community regional development measure contributing to overcoming constraints on the development of new economic activities in certain zones adversely affected by restructuring of the textile and clothing industry (OJ 1984 L 27, p. 22).

40 See the contested decision, Part I, seventh paragraph.

41 Judgment in Case 730/79 Philip Morris v Commission [1980] ECR 2671, at paragraphs 16, 17 and 24, and judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, at paragraph 56.

42 Fourth paragraph of Part VI, third indent of Part VIII, penultimate paragraph of Part VIII, also the second paragraph of Part X and the eighth paragraph of Pan IX, in relation to the economic pressure on undertakings to reduce their capacity.

43 Judgment in Case 234/84 Belgium v Commision [1986] ECR 2263, at paragraph 22. Reference in the penultimate paragraph of Part VIII of the contested decision.

44 Part VIII, first paragraph; and Part VI, second paragraph.

45 Part VI, third paragraph, and Pan VII, eleventh paragraph.

46 Contested decision, Part VI, third paragraph.

47 Contested decision, Part VI, first paragraph.

48 Contested decision, Part VI, tenth paragraph.

49 Case 259/85 France v Commission [1987] ECR 4393, at paragraph 24.

50 Judgment in Case 102/87 France v Commission [1988] ECR 4067, at paragraph 19.

51 In thai connection, see the Eighteenth Repon on Competition Policy — 1988, 1989, point 164, third paragraph.

52 In its judgments in Case 730/79 Philip Morris v Commission [1980] ECR 2671, at paragraph 11, and in Case 259/85 France v Commission (1987] ECR 4393, at paragraph 16, adopted by the Court in its judgment of 21 March 1990 in Case C-142/87 Belgium v Commission (Tubemeuse) 11990] ECR I-959, at paragraph 43, the Court pointed out that the small size of the undertaking in receipt of aid or the small amount of aid does not as such exclude the possibility that trade between Member States may be affected The judgment in SEB, however, goes even further.

53 Contested decision, Part I, eight paragraph, referred to in section 2 above. The applicant has still not succeeded in producing a copy of that telex at the Court's request, and nas not contested its contents, so that the form in which it is reproduced in the Commission's decision may be regarded as accurate.

54 Case 301/87 France v Commission [1990] ECR I-307.

55 Judgment in Case 70/72 Commission v Germany [1973] ECR 813, at paragraph 20.

56 Judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, at paragraph 66, with reference to the judgment in Case 310/85 Deitfil v Commission [1987] ECR 901.

57 Judgment in Case 223/85 RSVv Commisiion [1987] ECR 4617.

58 Contested decision, Part I, eighth paragraph.

59 Contested decision, Paa I, ninth paragraph.

60 Contested decision, Part I, tenth paragraph.

61 See Annex III to the Commission's defence

62 See the contested decision, Part II, eighth paragraph, in which the date is 19 December instead of 14 December.

63 For the same view, see the Opinion of Advocate Genera] Jacobs in Case C-301/87 France v Commission, cited above, at paragraphs 21 and 22.

64 Contested decision, Part II, first paragraph.

65 Part III of the contested decision.

66 Judgment in Case 94/87 Commission v Germany [1989] ECR 175, at paragraph 9. See also the judgment in Case 52/84 Commissions Belgium [1986] ECR 89, at paragraph 16. The rule that a Member State cannot usually rely on the principle of the protection of legitimate expectations has once again been strongly reaffirmed by the Court in the recent judgment in Case C-5/89 Commission v Germany [1990] ECR I-3437, at paragraphs 17 and 18.

67 Judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, at paragraph 61, and the judgment in Case C-5/89 Commission v Germany, cited in the previous footnote, at paragraph 12. See also the judgment in Joined Cases 205 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633.

68 See the judgments cited in footnote 65, in particular the judgment in Case 52/84, at paragraph 16.

69 Judgment in Case 52/84, cited in footnote 65 above, at paragraph 15.

70 Judgment in Case 94/87, cited in footnote 65 above, at paragraph 10, and the other two judgments cited in that footnote.

71 As pointed out above (in section 23), this is normally the ultimate recipient, that is to say the undertaking in receipt of the aid. In some cases, others may be required to repay the aid, for instance a parent company which has taken over the undertaking's assets and liabilities as part of a settlement, or has otherwise obtained the undertaking's added value resulting from the grant of aid That question arises in another case pending before the Court, namely Case C-305/89 Italy v Commission (Alfa Romeo).

72 Judgment in Case C-142/87, cited in footnotes 55 and 66 above, at paragraph 63