Order — ECLI:EU:C:2003:416
Date: 2003-07-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Provisional data;Jurisdiction of the Court of Justice;Existing aid and new aid;General
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Order 
1. State aid — Commission expressly declining to require recovery of aid which is 
incompatible with the common market — Assessment of the need none the less to 
I - 7849 
SUMMARY — CASE C-297/01 
require recovery in light of the absence of notification by the Member State 
concerned — jurisdiction of the national courts 
(Art. 88 EC) 
2. State aid — New State aid scheme — Definition — Transitional rules maintaining 
the effects of a scheme which is itself new — Whether covered 
(Arts 87 EC and 88 EC) 
3. Preliminary rulings — Jurisdiction of the Court — Limits — Assessment as to 
whether a particular grant of aid is compatible with the common market — Excluded 
(Arts 88 EC and 234 EC) 
1. It is for the national court to decide 
whether new aid, regarded by the 
Commission as incompatible with the 
common market but the recovery of 
which it has expressly declined to 
require, should or should not be 
recovered in the absence of prior 
notification of that aid. In that con­
nection, the national court will take 
account of the general principles of its 
internal law, including the principle of 
the protection of legitimate expec­
tations and the circumstances of the 
case. 
(see paras 40-41) 
2. Transitional rules which maintain the 
effects of a new State aid scheme which 
has not been notified to the Commis­
sion and has been declared incompat­
ible with Community law, in them­
selves constitute a new State aid 
scheme within the meaning of 
Articles 87 EC and 88 EC. 
(see para. 45, operative part 1) 
3. Assessment of the compatibility of 
State aid or of a State aid scheme with 
the common market falls within the 
exclusive competence of the Commis­
sion, subject to review by the Court. 
Consequently, a national court may 
not, in a request for a preliminary 
ruling pursuant to Article 234 EC, ask 
the Court for guidance on the com­
patibility with the common market of a 
given grant of State aid or a State aid 
scheme. 
(see para. 47, operative part 2) 
I - 7850