Opinion of the Advocate General — ECLI:EU:C:2006:576
Date: 2006-09-14
Language of the case: Italian
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Reference for interpretation of ECSC Treaty rules after expiry of the ECSC – Included (ECSC Treaty, Art. 41; Art. 234 EC) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Jurisdiction of the national court (Art. 234 EC) 3. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 234 EC) 4. State aid – Concept – Interpretation (ECSC Treaty, Art. 4(c); Arts 87(1) EC and 88(3) EC; Decision No 3484/85, Arts 1 and 6) 5. Preliminary rulings – Assessment of validity – Finding of invalidity – Lack of jurisdiction of national courts (ECSC Treaty, Art. 41; Art. 234 EC) 6. State aid – Commission decision finding aid incompatible with the common market and ordering its repayment (Art. 88(2) EC; Art. 230, second and fifth paras, EC) 7. Community law – Direct effect – Primacy – Commission decision ordering recovery of aid (Arts 10 EC and 88(2) EC) 1. The Court retains jurisdiction to deliver preliminary rulings on questions referred to it concerning the interpretation and application of the ECSC Treaty and on measures adopted under that Treaty, even if those questions are referred to it after the expiry of the ECSC Treaty. Although Article 41 of the ECSC Treaty may no longer be applied in those circumstances to confer jurisdiction on the Court, it would be contrary to the objectives and the coherence of the Treaties and irreconcilable with the continuity of the Community legal order if the Court did not have jurisdiction to ensure uniform interpretation of the rules deriving from the ECSC Treaty, which continue to produce effects even after the expiry of that Treaty. (see para. 41) 2. In proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling. (see para. 43) 3. In exceptional circumstances, the Court can examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see para. 44) 4. Proceedings concerning State aid may be commenced before national courts requiring those courts to interpret and apply the concept of aid contained in Article 87(1) EC, in particular in order to determine whether State aid introduced without observance of the preliminary examination procedure provided for in Article 88(3) EC ought to have been subject to that procedure. Similarly, in order to be able to determine whether a State measure established without taking account of the preliminary examination procedure laid down by Article 6 of Decision No 3484/85 establishing Community rules for aid to the steel industry (‘the third code’) should or should not be made subject to that procedure, a national court may have occasion to interpret the concept of aid referred to in Article 4(c) of the ECSC Treaty and Article 1 of the third code. On the other hand, national courts do not have jurisdiction to give a decision on whether State aid is compatible with the common market. The assessment of the compatibility of aid measures or of an aid scheme with the common market falls within the exclusive competence of the Commission, subject to review by the Community Courts. (see paras 50-52, 62) 5. Whilst national courts may, in principle, have occasion to consider whether a Community act is valid, they none the less have no jurisdiction themselves to declare acts of Community institutions invalid. The Court of Justice alone therefore has jurisdiction to determine that a Community act is invalid. That exclusive jurisdiction is also expressly set out in Article 41 of the ECSC Treaty. (see para. 53) 6. A decision adopted by a Community institution which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person. In that regard, it is not possible for a recipient of State aid forming the subject-matter of a Commission decision addressed directly solely to the Member State of that beneficiary, who could undoubtedly have challenged that decision and who allowed the mandatory time-limit laid down in that regard by the fifth paragraph of Article 230 EC to pass, effectively to call into question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities in implementation of that decision. The same principles necessarily apply mutatis mutandis within the scope of application of the ECSC Treaty. (see paras 54-55) 7. It is for the national courts to interpret, as far as it is possible, the provisions of national law in such a way that they can be applied in a manner which contributes to the implementation of Community law. In that regard, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation. Consequently, Community law precludes the application of a provision of national law which seeks to lay down the principle of res judicata in so far as the application of that provision prevents the recovery of State aid granted in breach of Community law which has been found to be incompatible with the common market in a decision of the Commission which has become final. (see paras 60-63, operative part)