Opinion of the Advocate General — ECLI:EU:C:2020:1062
Date: 2020-12-17
Language of the case: Italian
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

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Translation C-128/19 — 1 
Case C-128/19 
Request for a preliminary ruling 
Date lodged: 
18 February 2019 
Referring court: 
Corte suprema di cassazione (Italy) 
Date of the decision to refer: 
14 November 2018 
Appellant: 
Azienda Sanitaria Provinciale di Catania 
Respondent: 
Assessorato della Salute della Regione Siciliana 
  
THE ITALIAN REPUBLIC 
THE CORTE SUPREMA DI CASSAZIONE 
(SUPREME COURT OF CASSATION) 
[…] 
makes the following INTERLOCUTORY ORDER 
in the proceedings […] brought by 
Azienda Sanitaria Provinciale di Catania (Provincial Health Authority of Catania, 
Italy) […]; 
- appellant - 
against 
EN 
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Assessorato della Salute della Regione Siciliana (Regional Department of Health, 
Sicily, Italy) […]; 
- cross-appellant —  
[Or. 2] 
against 
AU; 
- respondent - 
against Judgment No 1496/2013 of the CORTE D’APPELLO di CATANIA 
(COURT OF APPEAL, CATANIA, Italy) [...]; 
FACTS 
1. By its judgment of 24 July 2013, the Corte d’appello di Catania (Court of 
Appeal, Catania), setting aside the contrary decision given at first instance, 
dismissed the appeal brought by the local Azienda Sanitaria Provinciale 
(Provincial Health Authority) against the order served on it by AU for payment of 
the compensation provided for by legge regionale Sicilia 5 giugno 1989, n. 12 
(Sicilian Regional Law No 12 of 5 June 1989) in favour of livestock farmers 
obliged to slaughter infected animals and, in the light of the fact that ‘the 
mechanism defined by the law — taken as a whole and considered logically — 
identifies the local health authority as the party obliged to pay the compensation in 
question’, found there to be no basis for the appellant’s argument of lack of 
standing on the ground that, in the case at issue, the party bearing the obligation 
was the Assessorato Regionale per la Sanità (Regional Department of Health). 
The contested decision is challenged by the appellant Provincial Health Authority 
on the basis of a single ground of appeal — followed by a pleading pursuant to 
Article 380-bis(1) of the codice di procedura civile (Italian Code of Civil 
Procedure) — to which the notified Regional Department of Health responded 
with a counter-appeal and pleading. AU has not entered a defence. 
LAW 
2.1. The sole ground of appeal concerns ‘subparagraph 3 of the first paragraph of 
Article 360 of the Italian Code of Civil Procedure — infringement and 
misapplication of Sicilian Regional Law No 12/1989 [Or. 3] and of Article 25(16) 
of Sicilian Regional Law No 19/2005; subparagraph 5 of the first paragraph of 
Article 360 of the Italian Code of Civil Procedure — insufficient or contradictory 
reasoning for a disputed fact decisive for the proceedings’. 
Given that the case at issue concerns the claim of a livestock farmer seeking 
payment of compensation originally provided for under Sicilian Regional Law 
AZIENDA SANITARIA PROVINCIALE DI CATANIA 
 
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No 12/1989 (‘Measures to facilitate the remediation and reintegration of livestock 
farms affected by tuberculosis, brucellosis and other infectious and widespread 
diseases and contributions to farmers’ associations’) and Article 25(16) of Sicilian 
Regional Law No 19/2005 (‘In pursuit of the objectives laid down in Article 1 of 
Sicilian Regional Law No 12 of 5 June 1989, pursuant to and in accordance with 
the provisions of Article 134 of Regional Law No 32 of 23 December 2000, 
expenditure of EUR 20 000 000 is authorised for the payment of amounts due 
from local health authorities in Sicily to owners of animals slaughtered as a result 
of being affected by infectious and widespread diseases in the period between 
2000 and 2006, and for payment of the fee to veterinary professionals involved in 
the remediation activities during that period. For the purposes of this paragraph, 
the expenditure of EUR 10 000 000 (base provision 10.3.1.3.2, chapter 417702) is 
authorised for the 2005 financial year. For subsequent financial years, 
arrangements shall be made in accordance with Article 3(2)(i) of Regional Law 
No 10 of 27 April 1999, as amended’) for operators in the livestock sector forced 
to slaughter livestock affected by brucellosis, alleging the error of law of the 
contested judgment, as well as the inconsistent and at times apodictic nature of the 
argument, the appellant contests the lower court’s interpretation of the rules in 
question as contrary both to the literal criterion, from [Or. 4] which it can only be 
inferred that the Regional Authority itself has to bear the legislative consequences, 
and the mens legis allegedly ascribed to those provisions, since the Court of 
Appeal regarded the technical and administrative tasks entrusted to health 
authorities by Sicilian Regional Law No 12/1989 as key aspects of the case, 
thereby making the health authorities liable for the compensation, even though the 
mechanism of access to the aid and the timing of its disbursement make it […] 
clear that the authorities, so burdened, can perform the tasks entrusted only after 
the Regional Authority has credited the necessary resources. 
2.2. By means of the abovementioned pleading, the appellant, insisting that the 
appeal should be upheld and reiterating the same objections, in relation to the 
affirmation made by the judgment under appeal in response to the argument that 
the aid in question constitutes ‘unlawful State aid’, as being adopted in breach of 
Article 87 of the EC Treaty (now Article 107 TFEU), such that it cannot be 
granted until the European Commission has completed its review procedure and 
issued a decision declaring it to be compatible with the common market (‘the 
ground may be disregarded, since the abovementioned compatibility review was 
carried out by the European Commission by means of Decision C(2002)[4786] of 
[6] December 2002 on the regional laws ... which, over the years and until 1997, 
refinanced the measures provided for by the substantive rule laid down in 
Article 1 of Regional Law No 12/89), maintained that the measure was contrary to 
the abovementioned euro-unitary provision in the absence of a declaration of 
compatibility from the European Commission, since these were ‘aid measures in 
principle [Or. 5] incompatible with the common market under Article 87(1) of the 
EC Treaty’. 
3. In view of the foregoing, the present Chamber considers that in relation to 
the last question raised, given its logical and legal absorption of the complaint 
REQUEST FOR A PRELIMINARY RULING OF 14. 11. 2018 — CASE C-128/19 
 
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made through the plea in law, the intervention of the Court of Justice of the 
European Union must be sought by means of a request for a preliminary ruling 
pursuant to Article 267 TFEU. 
4.1. As the Court of Justice has repeatedly stated, the application of the EU 
State-aid rules is based on a duty of sincere cooperation between the national 
courts, on the one hand, and the Commission and the EU Courts, on the other, in 
the context of which each acts on the basis of the role assigned to it by the Treaty. 
In the context of that cooperation, national courts must take all the necessary 
measures, whether general or specific, to ensure the fulfilment of the obligations 
under EU law and to refrain from those that may jeopardise the attainment of the 
objectives of the Treaty, as follows from Article 4(3) TEU (Court of Justice, 
26 October 2016, Case C-590/14, Dimosia Epicheirisi Ilektrismou AE; Court of 
Justice, 15 September 2016, Case C-574/14, PGE Górnictwo i Energetyka 
Konwencjonalna SA; Court of Justice, 19 March 2015, Case C-672/13, OTP Bank 
Nyrt). As repeatedly affirmed by the Court of Justice (judgment of 13 February 
2014, Case C-69/13, Mediaset SpA), and accordingly this court […] [national 
case-law], the Commission’s decisions, particularly those based on Article 108 
TFEU, impose a binding obligation on the recipient State, including its courts, 
which are required to comply on the basis of the principle of the primacy of EU 
law; [Or. 6] on that basis, it is likewise firmly held […] [national case-law] that, 
since it is for the European Commission alone to determine whether the aid 
measures of a Member State come within the scope of the provisions of 
Articles 107 and 108 TFEU, if the national court before which the question is 
raised has doubts as to the classification of the measure, it may, depending on the 
circumstances, call upon the Commission, or under Article 267 TFEU, refer a 
question to the Court of Justice for a preliminary ruling on the interpretation of 
Article 107 — an option that becomes an obligation in the case of a court of last 
instance pursuant to the third paragraph of Article 267 TFEU (Court of Justice, 
15 September 2016, Case C-574/14). 
4.2. In this respect, it is the present Chamber’s belief that the aid in question, 
constituting, as previously observed, ‘a measure financed from State resources 
which favours the livestock sector in Sicily, and which is therefore potentially 
liable to distort competition in a market — such as that of live bovine, ovine and 
caprine animals and their meat — which is closely integrated at EU level’, does 
not, in principle, circumvent the procedure originally laid down by Articles 87 and 
88 EC (and now by Articles 107 and 108 TFEU). Accordingly, since it is not for 
the national court to rule on the compatibility of that measure with the internal 
market — since that assessment, performed in accordance with the Community 
Guidelines for State aid in the agriculture sector, published in the Official Journal 
of the European Communities of 1 February 2000, lies within the exclusive remit 
of the Commission — in the absence of a decision by the Commission, the 
reference for a preliminary ruling to the Court of Justice […] is mandatory. 
[Or. 7] 
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4.3. This does not alter the fact that, by means of Decision C(2002)4786 of 
6 December 2002, the European Commission, examining the question in the light 
of other similar measures of the Sicilian Regional Authority — in casu, Article 11 
of l. reg. Sicilia 7 novembre 1999 (Sicilian Regional Law of 7 November 1999) 
and Article 7 of l. reg. Sicilia 28 settembre 1999 (Sicilian Regional Law No 22 of 
28 September 1999) — had already expressed the view that the compensation in 
question, being intrinsically designed to favour certain categories of livestock 
operators over others, thereby preventing the market from functioning in 
accordance with the principles of competition, constitutes State aid and therefore 
requires to be notified to the European Commission before it can be implemented. 
4.4. However influential this point may appear to be, and even though the 
Commission has approved identical measures in the past […], it is still not 
decisive. The decision cited, although based on the above premise, approved the 
measure, finding that, owing to the specific circumstances of the case and the 
implementing procedures — and in particular because it satisfies, according to the 
aforementioned Community Guidelines for State aid in the agriculture sector, the 
eligibility criteria for the derogation provided for in Article 87(3)(c) of the [EC] 
Treaty — it did not cause any alteration of the functioning of the market that 
might signify an infringement of the principle of competition, thus conclusively 
acknowledging its compatibility with the State-aid rules. 
4.5. However, within the framework that emerges in the light of these 
determinations, far from becoming clearer, the original doubt as to the 
interpretation is not only instinctively reinforced — since the Commission did not 
[Or. 8] rule out the compatibility of the measure with EU law on that occasion, 
such that it appears necessary to examine its nature in the appropriate forum and 
thus crave clarification from the Court of Justice — but is aggravated by a further 
consideration, since once the doubt was resolved in the sense of reaffirming the 
nature of the measure, as previously acknowledged by the Commission, the 
question then arises, given that the Commission has approved similar measures in 
the past, as to whether the compatibility opinion conclusively expressed in the 
abovementioned Decision C(2002)4786 can be applied outwith the regulatory 
framework, and thus also be deemed applicable in relation to measures other than 
those directly concerned, thereby legitimising the concession of aid granted by 
them. 
4.6. These observations must therefore be submitted to the Court of Justice of the 
European Union, with reference of the following questions under Article 267 
TFEU: 
(1) On the basis of Articles 87 and 88 of the EC Treaty — and now Articles 107 
and 108 TFEU — and the ‘Community Guidelines for State aid in the agriculture 
sector’ contained in Information from the Commission 2000/C 28/02, published in 
the Official Journal of the European Communities (OJ C 28, p. 2) of 1 February 
2000, does the measure set out in Article 25(16) of Sicilian Regional Law No [19] 
of 22 December 2005, under which, ‘in pursuit of the objectives laid down in 
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Article 1 of Sicilian Regional Law No 12 of 5 June 1989, pursuant to and in 
accordance with the provisions of Article 134 of Regional Law No 32 of 
23 December 2000, expenditure of EUR 20 000 000 is authorised for the payment 
of amounts due from local health authorities in Sicily to owners of animals 
slaughtered as a result of being affected by infectious and widespread diseases in 
the period between 2000 and 2006, and for payment of the fee to [Or. 9] 
veterinary professionals involved in the remediation activities during that period. 
For the purposes of this paragraph, the expenditure of EUR 10 000 000 (base 
provision 10.3.1.3.2, chapter 417702) is authorised for the 2005 financial year. 
For subsequent financial years, arrangements shall be made pursuant to 
Article 3(2)(i) of Regional Law No 10 of 27 April 1999, as amended’, constitute 
State aid which distorts or threatens to distort competition by favouring certain 
undertakings or the production of certain goods? 
(2) Although the provision laid down in Article 25(16) of Sicilian Regional Law 
No 19 of 22 December 2005, under which, ‘in pursuit of the objectives laid down 
in Article 1 of Sicilian Regional Law No 12 of 5 June 1989, pursuant to and in 
accordance with the provisions of Article 134 of Regional Law No 32 of 
23 December 2000, expenditure of EUR 20 000 000 is authorised for the payment 
of amounts due from local health authorities in Sicily to owners of animals 
slaughtered as a result of being affected by infectious and widespread diseases in 
the period between 2000 and 2006, and for payment of the fee to veterinary 
professionals involved in the remediation activities during that period. For the 
purposes of this paragraph, the expenditure of EUR 10 000 000 (base provision 
10.3.1.3.2, chapter 417702) is authorised for the 2005 financial year. For 
subsequent financial years, arrangements shall be made pursuant to Article 3(2)(i) 
of Regional Law No 10 of 27 April 1999, as amended’, might in principle 
constitute State aid which distorts or threatens to distort competition by favouring 
certain undertakings or the production of certain goods, can this nonetheless be 
recognised as being compatible with Articles 87 and 88 of the EC Treaty (and 
now with Articles 107 and 108 TFEU) in view of the reasons that led the 
European Commission, by means of its Decision C(2002)4786 of 6 December 
2002, to take the view, where the criteria provided for in the Community [Or.10] 
Guidelines for State aid in the agriculture sector contained in Information from the 
Commission 2000/C 28/02, published in the Official Journal of the European 
Communities (OJ C 28, p. 2) of 1 February 2000, are met, that similar provisions 
contained in Articles 11 of Sicilian Regional Law No 40/1997 and Article 7 of 
Regional Law No 22/1999 were compatible with Articles 87 and 88 EC? 
5. The reference for a preliminary ruling which must therefore be made 
determines a stay of proceedings. 
[…] 
[Or. 11] 
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[…] [repetition of the questions referred for a preliminary ruling and standard 
wording] 
[…] Rome […] 14 November 2018. 
[…]