Cividale SpA and Others v Ministero dello Sviluppo Economico and Others (C-746/23)

Judgment of 13 Mar 2025

law://eu/cjeu/2023/c-746-23/para_42@2026-11-13

42By contrast, the concept of ‘aid’, within the meaning of Article 107(1) TFEU, cannot cover a measure granted in favour of an undertaking through State resources where that undertaking could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions in which such an advantage has been granted is, in principle, carried out by applying the market economy operator principle, unless there is no possibility of comparing the State conduct at issue in a particular case with that of a private operator because, for example, that conduct is inseparably linked with the existence of infrastructure that no private operator would ever have been able to create, or the State acted in its capacity as a public authority (judgment of 17 November 2022, Volotea and easyJet v Commission, C‑331/20 P and C‑343/20 P, EU:C:2022:886, paragraph 108 and the case-law cited). In other words, the applicability of the private investor test ultimately depends, therefore, on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking. As the Court has already had occasion to point out, the nature and subject matter of the measure at issue, its context, the objective pursued and the rules to which it is subject may, in particular, be relevant (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraphs 81 and 86, and of 19 December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph 73).

Cividale SpA and Others v Ministero dello Sviluppo Economico and Others (C-746/23)

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