Opinion of the Advocate General — ECLI:EU:C:2018:712
Date: 2018-09-13
Language of the case: Italian
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Request for a preliminary ruling from the Corte suprema di cassazione (Italy), lodged on 28 June 2017 — Presidenza del Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo SpA (Case C-387/17) Language of the case: Italian Referring court Corte suprema di cassazione Parties to the main proceedings Applicant: Presidenza del Consiglio dei Ministri Defendant: Fallimento Traghetti del Mediterraneo SpA Questions referred ‘The Court of Justice of the European Union is asked the following questions (in the circumstances of the main proceedings, involving an action for damages against the State as legislator, alleging that, during the period 1976 to 1980, and pursuant to the law of that Member State (Law No 684/197), it granted to a shipping company subsidies constituting State aid within the meaning of Article 87(1) of the EC Treaty (formerly Article 92(1) and now Article 107(1) TFEU) which were not notified or authorised pursuant to Article 88 of the EC Treaty (formerly Article 93 and now Article 108 TFEU), in the context of a market that was not liberalised at that time (maritime cabotage): (a) For the purposes of classifying that aid (as ‘existing’ and, therefore, not ‘new’ aid), is Article 1(b)(v) of Regulation No 659/1999, 1 according to which ‘(v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation’, applicable and, if so, under what conditions; or is the principle (formally different in scope from that of the abovementioned substantive law provision) established by the General Court in its judgment of 15 June 2000 in Joined Cases T-298/97, T-312/97, T-313/97, T-315/97, T-600/9 to T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 (Alzetta and Others v Commission, paragraph 143), and confirmed, by the ruling, of interest in the present case, of the Court of Justice in Case C-298/00 P (paragraphs 66 to 69) — according to which ‘... a system of aid established in a market that was initially closed to competition must, when that market is liberalised, be regarded as an existing aid system, since at the time of its establishment it did not come within the scope of Article 92(1) of the Treaty [subsequently Article 87(1)], which, having regard to the requirements set out in that provision regarding effect on trade between Member States and repercussions on competition, applies only to sectors open to competition’ — applicable and, if so, under what conditions? (b) For the purposes of classifying the aid at issue, is Article 1(b)(iv) of Regulation No 659/1999, according to which ‘existing’ aid is ‘aid which is deemed to be existing aid pursuant to Article 15’ — Article 15 establishing a 10-year limitation period for recovering unlawfully granted aid — applicable and, if so, under what conditions —; or are the well established principles of the Court of Justice of the protection of legitimate expectation and legal certainty applicable and, if so, under what conditions (whether or not similar to the principle set out in the substantive law provision referred to above)?’ ____________ 1 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).