«(Action for annulment – Decision 2000/536/EC – State aid granted to Seleco SpA)»

1.. State aid – Definition – Aid from State resources – Aid granted by a private-law company owned essentially by a public authority – Resources of the undertaking constantly remaining under public control – Included (Art. 87(1) EC)

2.. State aid – Definition – Financial assistance granted by a Member State to a public or private undertaking – Assessment on the basis of the private investor criterion – Account to be taken of the context in which aid was granted (Art. 87(1) EC)

3.. State aid – Definition – Private investor test put into practice – Commission's power of assessment – Judicial review – Limits (Art. 87(1) EC)

4.. State aid – Recovery of unlawful aid – Obligation resulting from unlawfulness – Subject-matter – Restoration of the previous legal situation (Art. 88(2) EC)

5.. State aid – Recovery of unlawful aid – Procedures for recovery – Conduct of a private creditor – Obligation to use all the legal means available, including liquidation of the beneficiary (Art. 88(2) EC)

6.. State aid – Recovery of unlawful aid – Determination of the debtor where assets are transferred to a subsidiary – Economic continuity test (Art. 88(2) EC)

JUDGMENT OF THE COURT (Sixth Chamber) 8 May 2003 (1)

((Action for annulment – Decision 2000/536/EC – State aid granted to Seleco SpA))

In Joined Cases C-328/99 and C-399/00,

applicant in Case C-399/00,

v

defendant,

APPLICATION, in Case C-328/99, for annulment of Commission Decision 2000/536/EC of 2 June 1999 concerning State aid granted to Seleco SpA (OJ 2000 L 227, p. 24) and, in Case C-399/00, for annulment of Article 2(1) of that decision, in so far as it requires the Italian Republic to take the necessary measures to recover the aid granted to Seleco SpA from Seleco Mulimedia Srl with regard to the part not recoverable from the latter,

THE COURT (Sixth Chamber),,

composed of: R. Schintgen, President of the Second Chamber, acting for the President of the Sixth Chamber, C. Gulmann (Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: L.A. Geelhoed,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 30 May 2001, where the Italian Republic was represented by O. Fiumara, SIM 2 Multimedia SpA by A. Vianello and T. Ballarino, avvocato, and the Commission by G. Rozet and V. Di Bucci, acting as Agent, assisted by A. Abate,

after hearing the Opinion of the Advocate General at the sitting on 27 September 2001,

gives the following

The parties concerned

The contested decision

The contested decision

Classification of the operations by REL and Friulia as State aid

Arguments of the parties

Findings of the Court

.

The obligation to recover the aid that REL granted Seleco in 1996

Arguments of the parties

Findings of the Court

The obligation to recover State aid from Multimedia

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT (Sixth Chamber),

hereby:

Schintgen

Gulmann

Skouris

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 8 May 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber