# C_2019093EN.01001101.xml

| 11.3.2019 | EN | Official Journal of the European Union | C 93/11 |
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11.3.2019

EN

Official Journal of the European Union

C 93/11

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Judgment of the Court (First Chamber) of 23 January 2019 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Presidenza dei Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo SpA

(Case C-387/17) (1)

((Reference for a preliminary ruling - State aid - Existing aid and new aid - Classification - Regulation (EC) No 659/1999 - Article 1(b)(iv) and (v) - Principles of legal certainty and protection of legitimate expectations - Applicability - Subsidies granted before the liberalisation of a market initially closed to competition - Action for damages against the Member State brought by a competitor of the beneficiary company))

(2019/C 93/13)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Presidenza dei Consiglio dei Ministri

Defendant: Fallimento Traghetti del Mediterraneo SpA

Operative part of the judgment

| 1. | Subsidies granted to an undertaking before the date of liberalisation of the market concerned, such as those at issue in the main proceedings, cannot be classified as existing aid because of the merely formal absence of liberalisation of that market at the time those subsidies were granted, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition, which it is for the referring court to ascertain; |
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1.

Subsidies granted to an undertaking before the date of liberalisation of the market concerned, such as those at issue in the main proceedings, cannot be classified as existing aid because of the merely formal absence of liberalisation of that market at the time those subsidies were granted, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition, which it is for the referring court to ascertain;

| 2. | Article 1(b)(iv) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] must be interpreted as meaning that it is not applicable to a situation such as that at issue in the main proceedings. In so far as the subsidies at issue in the main proceedings were granted in breach of the obligation of prior notification laid down in Article 93 of the EEC Treaty, State entities cannot rely on the principle of the protection of legitimate expectations. In a situation such as that at issue in the main proceedings, where an action for damages against the Member State is brought by a competitor of the beneficiary company, the principle of legal certainty does not permit, by analogy, a limitation period, such as that laid down in Article 15(1) of that regulation, to be imposed on the applicant. |
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2.

Article 1(b)(iv) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] must be interpreted as meaning that it is not applicable to a situation such as that at issue in the main proceedings. In so far as the subsidies at issue in the main proceedings were granted in breach of the obligation of prior notification laid down in Article 93 of the EEC Treaty, State entities cannot rely on the principle of the protection of legitimate expectations. In a situation such as that at issue in the main proceedings, where an action for damages against the Member State is brought by a competitor of the beneficiary company, the principle of legal certainty does not permit, by analogy, a limitation period, such as that laid down in Article 15(1) of that regulation, to be imposed on the applicant.

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(1)  OJ C 338, 9.10.2017.

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