Judgment;Summary — ECLI:EU:C:2020:865
Date: 2020-10-28
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-608/19 - 1 
Case C-608/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
12 August 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
20 June 2019 
Appellant:  
Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro 
(INAIL) 
Respondent:  
Zennaro Giuseppe Legnami Sas di Zennaro Mauro & C 
  
Subject matter of the main proceedings 
Appeal lodged by the Istituto nazionale per l’assicurazione contro gli infortuni sul 
lavoro (National Institute for Insurance against Accidents at Work) (‘the INAIL’) 
against the judgment of the Tribunale amministrativo regionale per il Veneto 
(Regional Administrative Court, Veneto, Italy), which had granted the application, 
brought by Zennaro, for annulment of the decision refusing to grant financial 
assistance which was the subject of a public notice for incentives to undertakings 
(de minimis aid). 
Subject matter and legal basis of the reference 
Having regard to Article 267 TFEU, the referring court seeks clarification as to 
the precise interpretation of the rules laid down in Regulation 1407/2013 
regarding applications for the grant of de minimis aid and exceeding of the ceiling 
of EUR 200 000 for that aid, including in relation to the possibility for the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-608/19 
 
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applicant undertaking to take any corrective action necessary to fall below the 
ceiling. 
Question referred 
Must the rules on the grant of aid laid down in Articles 3 and 6 of Regulation 
No 1407/2013 be interpreted as meaning that it is possible for an applicant 
undertaking, which finds itself exceeding the maximum permissible ceiling on 
account of the cumulation with previous financial assistance, to opt - up to the 
actual payment of the financial assistance applied for - to reduce the funding (by 
amending or varying the project) or to forgo (in full or in part) previous financial 
assistance, possibly already received, in order to fall below the maximum limit 
payable; and must those provisions be interpreted as meaning that the various 
options proposed (variation or forgoing) apply even if they are not expressly 
provided for in the national legislation and/or in the public notice relating to the 
grant of aid? 
Provisions of EU law relied on 
Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the 
application of Articles 107 and 108 of the Treaty on the Functioning of the 
European Union to de minimis aid; in particular recitals 3, 10, 21 and 22, 
Article 3(2), (4) and (7), and Article 6(5) 
Provisions of national law relied on 
Bando 2013 ‘AVVISO PUBBLICO 2013 INCENTIVI ALLE IMPRESE PER LA 
REALIZZAZIONE DI INTERVENTI IN MATERIA DI SALUTE E 
SICUREZZA SUL LAVORO in attuazione dell’art. 11, co[mma] 1 lett.a) e 
co[mma] 5 D.lgs 81/2008 e s.m.i.’ (2013 invitation to tender ‘2013 PUBLIC 
NOTICE INCENTIVES FOR UNDERTAKINGS FOR IMPLEMENTING 
PLANS CONCERNING HEALTH AND SAFETY AT WORK, pursuant to 
Article 11(1)(a) and (5) of Legislative Decree 81/2008, as subsequently amended 
and supplemented’) 
Succinct presentation of the facts and the main proceedings 
1 Zennaro, the respondent in the proceedings at second instance, correctly submitted 
an application for funding within the 2013 framework public notice and, on 
30 October 2014, the INAIL informed it of the acceptance of its project and the 
possibility of obtaining advance funding, which the undertaking then actually 
applied for.  
2 However, in the course of the subsequent procedure relating to the public notice it 
emerged that, just two months earlier, Zennaro had been granted by the Region of 
INAIL 
 
3 
Veneto additional European funds, also regarded as State aid, in an amount which, 
combined with other public funding received earlier by that undertaking, 
exceeded, over the three-year reference period, the de minimis threshold of 
EUR 200 000. 
3 In the light of this situation, in order to avoid exceeding the abovementioned 
ceiling the respondent submitted to the INAIL on 12 August 2015, before the 
project was implemented, a variation of the project, reducing the total cost thereof 
so as to fall below the maximum permissible threshold. 
4 By decision of 18 November 2015, the INAIL announced that it could not grant 
the respondent the funding and considered that it could not grant partial funding 
unless the respondent forwent completely the previous funding. 
5 The respondent claimed that the court of first instance (the Regional 
Administrative Court, Veneto, Italy) should annul that decision and informed the 
INAIL that it had forgone the regional financial assistance which had been 
received earlier. 
6 On 6 June 2016, the INAIL confirmed that it would not provide the funding, 
because the limit laid down in Regulation (EC) No 1407/2013 had been exceeded, 
and that partial payment of the financial assistance would be contrary to 
Article 3(7) of that regulation. 
7 The respondent also claimed that the decision of 6 June 2016 should be annulled. 
8 The court of first instance upheld the action in the light of the express approach of 
the Directorate-General for Competition of the European Commission in response 
to the question raised by the respondent concerning the possible interpretations of 
Article 3(7) of Regulation No 1407/13. 
9 In its response, the Directorate-General acknowledged the possibility that the 
financial assistance could be reduced proportionally by the paying public entity 
for the purpose of complying with the threshold at issue and that it was for the 
national authorities to determine the preferred option, since both solutions - that of 
the proportional reduction and that of the complete refusal of the financial 
assistance - were, in abstract terms, consistent with EU law. 
10 The court of first instance further held that the INAIL should have expressly 
indicated in the public notice its strict interpretation of Article 3(7) of Regulation 
No 1407/13. 
11 The INAIL appealed against the judgment at first instance before the Consiglio di 
Stato (Council of State, Italy), the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-608/19 
 
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The essential arguments of the parties to the main proceedings 
12 The INAIL considered that the partial grant of the financial assistance is not in 
line, in particular, with the provisions of Article 3(7) of Regulation No 1407/2013 
since, in its view, de minimis aid is deemed to have been granted at the moment 
the right to receive it is conferred on the undertaking, irrespective of whether or 
not it is actually paid. 
13 As regards compliance with the maximum limit, it is checked at the moment the 
financial assistance is granted, that is to say at the stage when the application is 
accepted. Any corrective measures by the applicant must therefore be taken at that 
stage and not at the subsequent stage where the authority reports or checks the 
declarations made by the undertakings. 
14 In support of its position, the INAIL refers to the clauses of the 2013 invitation to 
tender and concludes that the mere fact that the undertaking was found eligible to 
receive aid is a circumstance that must be taken into account for the purpose of 
calculating the de minimis amount: that circumstance cannot be affected by 
varying the project, but only by forgoing completely the previous aid which has 
already been granted and can be cumulated with that applied for. 
15 Consequently, the respondent should have taken care to ascertain, prior to it being 
granted, that the grant of the aid applied for would not result in the ceiling of 
EUR 200 000 being exceeded: subsequently it could neither vary the project, to 
reduce the fundable amount thereof, nor partially forgo the previous funding. The 
only possible solution would have been to forgo completely the previous aid. 
16 Furthermore, according to the INAIL, the provisions of Regulation 1407/2013 
must be interpreted strictly and, in order to be applied, it is not necessary for them 
to be referred to in the relevant public notice. 
17 The respondent argues, by contrast, that it is clear from the public notice that 
variations may be proposed to affect the original decision to grant, otherwise the 
notice itself would have expressly provided for verification of compliance with 
the de minimis thresholds at an earlier time, that is to say at the stage at which the 
eligibility for financial assistance was examined. 
18 The respondent also refers to Article 6(5) of Regulation No 1407/2013 to 
conclude that the declarations concerning the total amount of de minimis aid 
received and the consequent checks cannot relate solely to the situation of the 
undertaking at the time of the first decision to grant, but must relate to the overall 
situation of the aid received. 
19 Finally, in the view of the respondent, the interpretation of the rules on de minimis 
aid provided by the INAIL is excessively strict and would be punitive for 
undertakings, thus contradicting the purpose of the system in question which is to 
simplify the administrative burdens for undertakings in the case of a limited 
amount of aid. 
INAIL 
 
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Succinct presentation of the reasons for the reference 
20 Examining the clauses of the public notice at issue, the referring court considers 
that both solutions proposed by the parties are possible.  
21 In its view, the above provisions of Regulation 1407/2013 are not decisive either: 
under Article 3(4), the provision whereby the aid is to be deemed ‘granted’ at the 
moment the legal right to receive it is conferred on the undertaking, irrespective of 
the date of payment, does not preclude a more comprehensive procedure, under 
the applicable national law, which also includes prior assessment of whether or 
not the ceiling has been exceeded (under Article 6(3)), only at the conclusion of 
which it can be said conclusively that the right to the financial assistance has been 
‘conferred’.  
22 Similar considerations apply with regard to the declarations of the aid received 
and the moment at which the possible forgoing of previous aid can/must take 
place (compulsorily before the actual payment of the earlier financial assistance or 
even subsequently). 
23 As the court of final instance, the referring court considers that it is obliged to 
bring the matter before the Court of Justice since it has found nothing in the case-
law of the Court of Justice which would enable it to rule on the correct application 
of the provisions of EU law on this matter, in particular given the importance in 
economic terms of the incentives for undertakings.