Opinion of the Advocate General — ECLI:EU:C:2008:658
Date: 2008-11-27
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment State aid – Prohibited – Derogations – Aid which may be considered compatible with the common market (Art. 87(3) EC; Commission communication 95/C 334/04; Commission communication 98/C 074/09) In order to determine whether there has been an increase in employment, the guidelines on aid to employment, under which employment aid intended for the recruitment of additional workers to a company may be declared compatible with the common market, should be interpreted as meaning that the average number of annual working units for the year preceding recruitment should be compared with the average number of annual working units for the year following such recruitment. Those guidelines should be interpreted in close conjunction with the guidelines on national regional aid, since the notion of job creation is common to both sets of guidelines, which in essence define that notion by referring, at points 17 and 4.12 of the respective texts, to the net increase in the number of jobs compared with an average over a period of time. The guidelines on national regional aid define more precisely the second term to be used in comparing an undertaking’s workforce in order to ascertain that there has indeed been a net increase in employees in relation to an average over a period of time. First, at point 4.12, they specify that job creation means a net increase in the number of jobs in a particular establishment compared with the average over a period of time, and that any jobs lost during that period must therefore be deducted from the apparent number of jobs created during the same period. Second, the guidelines state, at footnote 33, that the number of jobs corresponds to the number of annual labour units, that is to say the number of persons employed full-time in one year, part-time and seasonal work being annual labour unit fractions. It follows that, according to the guidelines on national regional aid, job creation means the net increase in the number of persons employed full-time in one year (part-time and seasonal work being annual labour unit fractions) in an establishment compared with the average over a period of time. Accordingly, under those guidelines, the second term in the comparison of the number of employees at the given time is therefore established not by the number of employees of an undertaking on the day of recruitment, but rather by the number of employees calculated in terms of annual labour units over the period of a year. (see paras 23, 25-27, 32, operative part)