Opinion of the Advocate General — ECLI:EU:C:1998:378
Date: 1998-07-16
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
1. Preliminary rulings •—• Jurisdiction of the Court— Need for a preliminary ruling —• To be
determined by the national court
(EC Treaty, Art. 177)
2. ECSC — Aid to the steel industry — Definition — Application to large insolvent undertak­
ings of a system derogating from the rules of ordinary law relating to insolvency — Covered
•—• Conditions
(ECSC Treaty, Art. 4(c))
I - 7907
SUMMARY— CASE C-200/97
1. 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 judg­
ment and the relevance of the questions
which it submits to the Court.
2. The expression 'aid', for the purposes of
Article 4(c) of the ECSC Treaty, neces­
sarily implies advantages granted directly
or indirectly through State resources or
constituting an additional charge for the
State or for bodies designated or estab­
lished by the State for that purpose.
In that connection, the possible loss of tax
revenue for the State as a result of the
application, by ministerial decree, to large
undertakings in difficulties of a system
derogating from the rules of ordinary law
relating to insolvency — on account of
the absolute prohibition on individual
actions for enforcement and the suspen­
sion of interest on all debts owed by the
undertaking in question, and the corre­
lated reduction in creditors' profits — does
not in itself justify treating that system as
aid. That consequence is an inherent fea­
ture of any statutory system laying down
a framework for relations between an insol­
vent undertaking and the general body of
creditors.
On the other hand, application of such a
system to an undertaking within the
meaning of Article 80 of the ECSC Treaty
is to be regarded as giving rise to the grant
of State aid, prohibited by Article 4(c) of
the ECSC Treaty, where it is established
that the undertaking
— has been permitted to continue trading in
circumstances in which it would not have
been permitted to do so if the rules of
ordinary law relating to insolvency had
been applied, or
— has enjoyed one or more advantages, such
as a State guarantee, a reduced rate of tax,
exemption from the obligation to pay fines
and other pecuniary penalties or waiver in
practice of public debts wholly or in part,
which could not have been claimed by
another insolvent undertaking in connec­
tion with the application of the rules of
ordinary law relating to insolvency.
In either case, the result might be an addi­
tional burden for the public authorities,
compared to the situation that would have
arisen if the usual insolvency rules had been
applied.
I - 7908
ECOTRADE v AFS
Furthermore, having regard to the class of
undertakings covered by the legislation
and the scope of the discretion enjoyed by
the national authorities when authorising
an insolvent undertaking under special
administration to continue trading, that
legislation meets the condition that it
should relate to a specific undertaking,
which is one of the defining features of
State aid.
I - 7909