Judgment — ECLI:EU:C:2010:291
Date: 2010-05-20
Language of the case: Italian
Court formation: Fourth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

summary was published in the Official Journal of the European Communities on 21 December 1995, but also to refer to the Italian Government’s notification of 18 May 1995 of the measures adopted. 32 It is apparent from examination of those documents that the aid measures thus notified are those provided for in Articles 9 to 11 of Law 27/91 and for which an annual budgetary allocation was fixed in order to ensure financing for those measures. 33 Having regard to the questions referred by the national court, examination of the scope of the 1995 Decision must be limited to Article 10 of Law 27/91. 34 Article 10 of that Law provides, in essence, for two aid measures to promote employment. The first consists of the grant of a subsidy equivalent to 30% or 50% of the remuneration of workers recruited on training and work-experience contracts for the entire duration of those contracts, on condition that the workers were recruited during the period from the first day of the month following the month of entry into force of Law 27/91 up to 31 December 1996. 35 The second consists of the grant of a degressive subsidy varying from 50% to 25% of the remuneration of workers in the event of conversion of such a contract into an open-ended contract within the first three years of that contract, on condition that that conversion took place during the period from the first day of the month following the month of entry into force of Law 27/91 up to 31 December 1996 and concerns workers recruited before that period. 36 Next, it must be noted, firstly, that those two forms of aid cannot be cumulative in time in respect of the same worker since, in order to benefit from the second form of aid following conversion of a fixed-term contract, the worker must have been recruited before the date on which Law 27/91 entered into force. 37 Secondly, payment of the sums allocated in respect of the aid granted may, subject to the national budgetary rules applicable, be made after 31 December 1996. 38 By contrast, the event giving rise to the aid, that is to say, the recruitment of the worker, in the first case, or the conversion of the contract into an open-ended contract, in the second, must have occurred before 31 December 1996. 39 In addition, as is apparent from the descriptive list attached to the abovementioned notification letter of 18 May 1995, the budgetary provision approved by the Commission for both of those measures under Article 10 of Law 27/91 amounts to ITL 159 thousand million, that is to say, approximately EUR 79.5 million, for the period 1991 to 1996. 40 In that regard, it must be noted that the 1995 Decision merely fixes the commitment limit of the budgetary provision and neither specifies nor interferes in the rules governing payment of that aid, which remain subject to the national provisions. 41 It follows from the foregoing that the answer to the first, second and third questions is that the 1995 Decision must be interpreted as having accepted, as being compatible with the common market, an aid scheme composed of two measures provided for in Article 10(1)(a) and (b) of Law 27/91, which cannot be cumulative and the event giving rise to which, that is to say, the recruitment of a worker or the conversion of the contract into an open-ended contract, must have taken place before 31 December 1996, but the payments to which they give rise may be made after that date, on condition that the applicable national budgetary and financial rules do not preclude that and that the budgetary provision approved by the Commission is not exceeded. The fourth, sixth and seventh questions 42 By its fourth, sixth and seventh questions, which it is appropriate to consider together, the national court asks the Court, in essence, to interpret Article 1 of Decision 2003/195 in order to determine whether the aid to which that decision relates is new aid. 43 In Article 1 of Decision 2003/195, the Commission declared that the aid scheme laid down in Article 11(1) of Law 16/97 was incompatible with the common market. 44 Article 11(1) of that Law provides, in the light of recital 10 in the preamble to Decision 2003/195, for the refinancing for 1997 and 1998 of the aid scheme instituted by Article 10 of Law 27/91 in the additional amount of ITL 82 thousand million, that is to say, approximately EUR 42.3 million. 45 In that regard, ‘all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid’ must be considered to be new aid within the meaning of Article 1(c) of Regulation No 659/1999. 46 Furthermore, it is settled case-law that measures taken after the entry into force of the Treaty to grant or alter aid, whether the alterations relate to existing aid or to initial plans notified to the Commission, must be regarded as new aid (Joined Cases C‑346/03 and C‑529/03 Atzeni and Others [2006] ECR I‑1875, paragraph 51 and the case-law cited). 47 It follows that, by providing both for an increase in the budget allocated to the aid scheme referred to in Article 10 of Law 27/91, in an amount exceeding 50% in the present case, and for a two-year extension of the period during which the conditions for grant of that aid were applicable, Article 11(1) of Law 16/97 created new aid distinct from the aid referred to in the 1995 Decision. That new aid alone was declared incompatible with the common market by the Commission in Decision 2003/195. 48 Accordingly, the employment of workers recruited on training and work-experience contracts or conversion of training and work-experience contracts into open-ended contracts with effect from 1 January 1997 can no longer give rise to the grant of any aid. 49 The answer to the fourth, sixth and seventh questions is therefore that Article 1 of Decision 2003/195 must be interpreted as meaning that the aid scheme provided for in Article 11(1) of Law 16/97 constitutes new aid distinct from that provided for in Article 10 of Law 27/91. Article 1 of Decision 2003/195 precludes the grant of subsidies in respect of any employment of workers recruited under training or work-experience contracts or conversion of training and work-experience contracts into open-ended contracts with effect from 1 January 1997. The eighth question 50 By its eighth question, the national court seeks, in essence, to determine which party to the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Law 27/91 and authorised by the 1995 Decision has not been exhausted. 51 Firstly, it must be borne in mind that, as has been pointed out in paragraphs 39 and 40 of the present judgment, the budgetary provision accepted by the 1995 Decision is that allocated by the Region of Sicily to the aid scheme provided for in Article 10(1)(a) and (b) of Law 27/91, as determined in the Italian Government’s notification of 18 May 1995 to the Commission of the measures adopted. 52 Secondly, it must be held that the 1995 Decision has the effect of authorising an aid scheme by declaring it compatible with the common market, but does not have the effect of imposing that scheme on the Member State concerned. 53 Thus, the purpose and effect of the 1995 Decision are not to compel the Italian Republic to grant the aid referred to in Article 10(1)(a) and (b) of Law 27/91, but rather to authorise it to implement that aid if that continues to be its wish (see, to that effect, Case C‑18/08 Foselev Sud-Ouest [2008] ECR I‑8745, paragraph 16). 54 Accordingly, in the absence of Community legislation on the matter, it is for the internal legal order of each Member State to define the detailed arrangements and rules of evidence intended to establish that the budgetary provision allocated to the aid scheme authorised by the 1995 Decision has not been exceeded. 55 However, it should be pointed out that the national authorities must be in a position to justify, in particular at the request of the Commission, the status of payments made under an aid scheme where, as is the case with regard to the 1995 Decision, the Commission has ruled in respect of a scheme for which the Member State has provided for a maximum budgetary provision which may be disbursed individually to beneficiaries of that scheme. 56 Accordingly, the answer to the eighth question is that it is for the Member State concerned to determine which party to the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Law 27/91 and authorised by the 1995 Decision has not been exhausted. The ninth and tenth questions 57 By its ninth and tenth questions, which it is appropriate to consider together, the national court asks, in essence, whether the amount of statutory interest which may be due from the Region of Sicily in the event of delay in payment of the aid is to be included in the amount of the budgetary provision authorised by the 1995 Decision and, if so, what the applicable rate may be. 58 In that regard, it is appropriate, firstly, to note that the first sentence of Article 88(3) EC imposes on the Member States an obligation to inform the Commission of any plans to grant or alter aid (Case C‑199/06 CELF and Ministre de la Culture et de la Communication [2008] ECR I‑469, paragraph 33). 59 Under the second sentence of Article 88(3) EC, if the Commission considers that the plan notified is not compatible with the common market within the meaning of Article 87 EC, it must, without delay, initiate the procedure provided for in Article 88(2) EC (CELF and Ministre de la Culture et de la Communication, paragraph 34). 60 Under the final sentence of Article 88(3) EC, the Member State which envisages granting aid must not put its proposed measures into effect until that procedure has resulted in a final decision of the Commission (CELF and Ministre de la Culture et de la Communication, paragraph 35). 61 The prohibition laid down by that provision is designed to ensure that an aid scheme cannot become operational before the Commission has had a reasonable period in which to study the proposed measures in detail and, if necessary, to initiate the procedure provided for in Article 88(2) EC (Case C‑301/87 France v Commission (‘Boussac Saint Frères’) [1990] ECR I‑307, paragraph 17, and CELF and Ministre de la Culture et de la Communication, paragraph 36). 62 It follows that, as the 1995 Decision rendered the aid scheme provided for in Article 10(1)(a) and (b) of Law 27/91 compatible with the common market only with effect from the date of that decision, any late payment of the aid can give rise to the calculation of interest only in respect of amounts of aid due after that date. 63 Secondly, as follows from the answer to the eighth question, the right to obtain payment of interest in the event of late payment of the aid and the detailed arrangements and rates applicable to that interest fall within the scope of national law. 64 It must, however, be pointed out that the 1995 Decision relates only to the aid measures provided for in Law 27/91, in particular in Article 10(1)(a) and (b) thereof, within the limit of the budgetary provision set out in the Italian Government’s notification of 18 May 1995 of the measures adopted. 65 By contrast, the amount of interest which may be due in the event of late payment of those aid measures cannot constitute aid, whether in whole or in part, and, accordingly, cannot be paid from the budgetary provision allocated to that aid. 66 It follows from the foregoing that the answer to the ninth and tenth questions is that the amount of statutory interest which may be due in the event of late payment of the aid authorised by the 1995 Decision for the period following that decision is not to be included in the amount of the budgetary provision authorised by that decision. The rate of interest and the detailed arrangements for applying that rate fall within the scope of national law. Costs 67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fourth Chamber) hereby rules: 1. Commission Decision SG (95) D/15975 of 11 December 1995 relating to Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment (State aid NN 91/A/95) must be interpreted as having accepted, as being compatible with the common market, an aid scheme composed of two measures provided for in Article 10(1)(a) and (b) of abovementioned Regional Law No 27, which cannot be cumulative and the event giving rise to which, that is to say, the recruitment of a worker or the conversion of the contract into an open-ended contract, must have taken place before 31 December 1996, but the payments to which they give rise may be made after that date, on condition that the applicable national budgetary and financial rules do not preclude that and that the budgetary provision approved by the Commission of the European Communities is not exceeded. 2. Article 1 of Commission Decision 2003/195/EC of 16 October 2002 on the scheme by which Italy plans to aid employment in the Region of Sicily – C 56/99 (ex N 668/97) must be interpreted as meaning that the aid scheme provided for in Article 11(1) of Regional Law No 16 of the Region of Sicily of 27 May 1997 authorising expenditure for the use of the provisions entered in the general funds of the budget of the Region for the financial year 1997 constitutes new aid distinct from that provided for in Article 10 of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment. Article 1 of Decision 2003/195 precludes the grant of subsidies in respect of any employment of workers recruited under training or work-experience contracts or conversion of training and work-experience contracts into open-ended contracts with effect from 1 January 1997. 3. It is for the Member State concerned to determine which party to the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to aid employment and authorised by Decision SG (95) D/15975 has not been exhausted. 4. The amount of statutory interest which may be due in the event of late payment of the aid authorised by Decision SG (95) D/15975 for the period following that decision is not to be included in the amount of the budgetary provision authorised by that decision. The rate of interest and the detailed arrangements for applying that rate fall within the scope of national law. [Signatures] * Language of the case: Italian.