# C_2009153EN.01002302.xml

| 4.7.2009 | EN | Official Journal of the European Union | C 153/23 |
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4.7.2009

EN

Official Journal of the European Union

C 153/23

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Reference for a preliminary ruling from the Tribunale Ordinario di Palermo (Italy) lodged on 15 April 2009 — Todaro Nunziatina & C. snc v Assessorato del Lavoro e della Previdenza Sociale

(Case C-138/09)

2009/C 153/43

Language of the case: Italian

Referring court

Referring court

Tribunale Ordinario di Palermo

Parties to the main proceedings

Parties to the main proceedings

Applicant: Todaro Nunziatina & C. snc

Applicant:

Defendant: Assessorato del Lavoro e della Previdenza Sociale

Defendant:

Questions referred

Questions referred

| 1. | In the light of the fact that the aid scheme (Ref. NN 91/A/95) established by the Region of Sicily in Article 10 of Regional Law No 27 of 15 May 1991 laid down a mechanism of assistance for a minimum of two, and a maximum of five, years (two years for workers recruited on training and work experience contracts plus a maximum of three years in cases where those contracts are converted into open-ended contracts), was it the intention of the European Commission, in Decision No 95/C 343/11 of 14 November 1995 authorising the scheme’s implementation (‘the authorising decision’):






  — | to permit such a cumulative increase to the duration and financial amount of the assistance (two years + three years) or, alternatively, |
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1.

In the light of the fact that the aid scheme (Ref. NN 91/A/95) established by the Region of Sicily in Article 10 of Regional Law No 27 of 15 May 1991 laid down a mechanism of assistance for a minimum of two, and a maximum of five, years (two years for workers recruited on training and work experience contracts plus a maximum of three years in cases where those contracts are converted into open-ended contracts), was it the intention of the European Commission, in Decision No 95/C 343/11 of 14 November 1995 authorising the scheme’s implementation (‘the authorising decision’):

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to permit such a cumulative increase to the duration and financial amount of the assistance (two years + three years) or, alternatively,

| — | to authorise, on a mutually exclusive basis, either the grant of assistance for workers recruited on training and work experience contracts (for the two years’ duration of such contracts) or the grant of assistance for those workers recruited previously on training and work experience contracts which were subsequently converted into open-ended contracts (for the three years from that conversion)? |
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to authorise, on a mutually exclusive basis, either the grant of assistance for workers recruited on training and work experience contracts (for the two years’ duration of such contracts) or the grant of assistance for those workers recruited previously on training and work experience contracts which were subsequently converted into open-ended contracts (for the three years from that conversion)?

| 2. | Should the time-limit of the financial year 1997 for the implementation of State aid, laid down by the European Community in the authorising decision approving the scheme established by Regional Law No 27/91, be interpreted as referring to:






  — | the initial provision for expenditure on aid scheduled in any event to be paid in subsequent years (according to the various interpretations of authorised aid possible, which have been referred to), or rather |
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2.

Should the time-limit of the financial year 1997 for the implementation of State aid, laid down by the European Community in the authorising decision approving the scheme established by Regional Law No 27/91, be interpreted as referring to:

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the initial provision for expenditure on aid scheduled in any event to be paid in subsequent years (according to the various interpretations of authorised aid possible, which have been referred to), or rather

| — | the time-limit for the actual payment of assistance by the competent regional bodies? |
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the time-limit for the actual payment of assistance by the competent regional bodies?

| 3. | Thus, for workers recruited on training and work experience contracts, pursuant to Article 10 of Regional Law No 27/91, for instance on 1 January 1996, and therefore before the time-limit for the period for implementing the State aid set out in the authorising decision, was the Region of Sicily permitted — and indeed required — actually to implement the aid scheme in question for all of the years authorised (that is to say two + three), and even where, as in the example mentioned, the implementation of the authorised scheme entailed the actual payment of the assistance until 31 December 2001 (that is to say, 1996 + five years = 2001)? |
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3.

Thus, for workers recruited on training and work experience contracts, pursuant to Article 10 of Regional Law No 27/91, for instance on 1 January 1996, and therefore before the time-limit for the period for implementing the State aid set out in the authorising decision, was the Region of Sicily permitted — and indeed required — actually to implement the aid scheme in question for all of the years authorised (that is to say two + three), and even where, as in the example mentioned, the implementation of the authorised scheme entailed the actual payment of the assistance until 31 December 2001 (that is to say, 1996 + five years = 2001)?

| 4. | Was it the intention of the European Commission, by Article 1 of Decision No 2003/195/EC of 16 October 2002, which states: ‘The aid scheme which Italy plans to implement under Article 11(1) of the Sicilian Regional Law No 16 of 27 May 1997 is incompatible with the common market. The scheme may accordingly not be implemented’:






  — | to refuse authorisation of the ‘new’ aid scheme established under Article 11 of Regional Law No 16/97, because the Commission regarded that scheme as an ‘autonomous’ system designed to extend the period for implementing the aid introduced by Article 10 of Regional Law No 27/91 beyond the time-limit of 31 December 1996 to include even the costs of recruiting workers and/or converting contracts carried out in the years 1997 and 1998, or |
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4.

Was it the intention of the European Commission, by Article 1 of Decision No 2003/195/EC of 16 October 2002, which states: ‘The aid scheme which Italy plans to implement under Article 11(1) of the Sicilian Regional Law No 16 of 27 May 1997 is incompatible with the common market. The scheme may accordingly not be implemented’:

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to refuse authorisation of the ‘new’ aid scheme established under Article 11 of Regional Law No 16/97, because the Commission regarded that scheme as an ‘autonomous’ system designed to extend the period for implementing the aid introduced by Article 10 of Regional Law No 27/91 beyond the time-limit of 31 December 1996 to include even the costs of recruiting workers and/or converting contracts carried out in the years 1997 and 1998, or

| — | rather, by that decision, to prevent the Region from materially acquiring the financial resources, in order to prevent the actual payment of the State aid laid down in Article 10 of Regional Law No 27/91, even for workers recruited and/or contracts converted before 31 December 1996? |
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rather, by that decision, to prevent the Region from materially acquiring the financial resources, in order to prevent the actual payment of the State aid laid down in Article 10 of Regional Law No 27/91, even for workers recruited and/or contracts converted before 31 December 1996?

| 5. | If the Commission’s decision is to be interpreted along the lines of the first option in question 4, is such a decision compatible with the Commission’s interpretation of Article 87 of the Treaty in determining similar cases relating to the exemptions from the costs of social security contributions on training and work experience contracts in Decision 2000/128/EC of 11 May 1999 (concerning the laws of the Italian State and specifically referred to in the grounds of the decision of incompatibility of 2002) and Decision 2003/739/EC of 13 May 2003 (concerning the laws of the Region of Sicily)? |
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5.

If the Commission’s decision is to be interpreted along the lines of the first option in question 4, is such a decision compatible with the Commission’s interpretation of Article 87 of the Treaty in determining similar cases relating to the exemptions from the costs of social security contributions on training and work experience contracts in Decision 2000/128/EC of 11 May 1999 (concerning the laws of the Italian State and specifically referred to in the grounds of the decision of incompatibility of 2002) and Decision 2003/739/EC of 13 May 2003 (concerning the laws of the Region of Sicily)?

| 6. | If the Commission’s decision is to be interpreted along the lines of the second option in question 4, what interpretation is to be given to the previous decision authorising the aid measures, taking into account the dual meaning that may be ascribed to the adjective ‘further’, that is to say ‘further in relation to the budget as laid down in the Commission’s decision’ or ‘further in relation to the provision for finance made by the Region only until the financial year 1996’? |
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6.

If the Commission’s decision is to be interpreted along the lines of the second option in question 4, what interpretation is to be given to the previous decision authorising the aid measures, taking into account the dual meaning that may be ascribed to the adjective ‘further’, that is to say ‘further in relation to the budget as laid down in the Commission’s decision’ or ‘further in relation to the provision for finance made by the Region only until the financial year 1996’?

| 7. | Ultimately, which aid is to be regarded as lawful, and which as unlawful, according to the Commission? |
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7.

Ultimately, which aid is to be regarded as lawful, and which as unlawful, according to the Commission?

| 8. | Which of the parties to the present proceedings (the company or the Regional Ministry), has the burden of proving that the budget laid down by the Commission itself has not been exceeded? |
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8.

Which of the parties to the present proceedings (the company or the Regional Ministry), has the burden of proving that the budget laid down by the Commission itself has not been exceeded?

| 9. | Should the award of statutory interest to a company for late payment of assistance that is held to be lawful and admissible be taken into account in determining whether the budget originally approved by the authorising decision has been exceeded? |
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9.

Should the award of statutory interest to a company for late payment of assistance that is held to be lawful and admissible be taken into account in determining whether the budget originally approved by the authorising decision has been exceeded?

| 10. | If the award of such interest is relevant in determining whether that budget has been exceeded, what measure of interest is to be applied? |
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10.

If the award of such interest is relevant in determining whether that budget has been exceeded, what measure of interest is to be applied?

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