Judgment_paragraph 49 · Italian Republic v Commission of the European Communities (C-298/00 P)

49As the Court of First Instance held inter alia, in paragraphs 77 to 79 of the contested judgment, in the course of the Commission's assessment of new aid which, pursuant to Article 93(3) of the Treaty, is to be notified to it before being put into effect, the Commission is required to establish, not whether such aid has a real impact on trade between Member States and on competition, but whether that aid could affect that trade. If the Commission had to demonstrate in its decision the real effect of aid already granted, such a requirement would have the effect of favouring Member States which grant aid in breach of the obligation to notify laid down in Article 93(3) of the Treaty, to the detriment of those which do notify aid at the planning stage (Case C-301/87 France v Commission [1990] ECR I-307, ‘Boussac Saint Frères’, paragraphs 32 and 33).