Opinion of the Advocate General — ECLI:EU:C:2006:21
Date: 2006-01-12
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;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary 54. According to the above analysis, two alternative scenarios must be considered in order to give a useful answer to the referring court. 55. If it is found that the withdrawal at issue in these proceedings was in exercise of an exceptional right of withdrawal outside the scope of the withdrawal provisions of the Civil Code, then it must be held that a regime such as that created by Law No 273/2002, giving the members of a State-controlled company a right of withdrawal on condition of disclaiming any interest in the assets of that company, does not constitute State aid to that company. 56. If, on the other hand, the withdrawal was not effected pursuant to an exceptional right but would in any event have been allowed under the general law, then it must be held that such a regime constitutes State aid for the purposes of the Treaty and ought therefore to have been notified in advance to the Commission. 57. It is a matter for the national court to ascertain whether, in the instant case, the withdrawal was effected in accordance with the requirements laid down by the general law on withdrawal from commercial companies. V – Conclusion 58. I am therefore of the opinion that the Court should respond to the reference made by the Tribunale di Cagliari in the following terms: On a proper interpretation of Article 87(1) EC and Article 88(3) EC, a regime such as that created by Law No 273/2002 of 12 December 2002, giving the members of a State-controlled company a right of withdrawal on condition of disclaiming any interest in the assets of that company, does not constitute State aid for the purposes of those provisions and did not require to be notified in advance to the Commission of the European Communities, unless it is found that such withdrawal could have been effected under the general law on withdrawal. In the latter case, such a regime must be considered to constitute State aid which should have been notified in advance to the Commission. 1 - Original language: Portuguese. 2 – See, in particular, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6. 3 – The Court’s recently updated information note on references for preliminary rulings by national courts states that ‘the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling’ (OJ 2005 C 143, p. 1). 4 – The order for reference wrongly cites Law No 240/2002 instead of Law No 273/2002. 5 – See, in particular, Case C-188/91 Deutsche Shell [1993] ECR I-363, paragraph 27. 6 – See, in particular, order in Case C-297/01 Sicilcassaand Others [2003] ECR I-7849, paragraph 47. 7 – See, to this effect, Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraphs 49 to 51. 8 – See, in particular, Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 27, and Case C‑174/02 Streekgewest [2005] ECR I‑85, paragraph 17), and the Opinion of Advocate General Jacobs in Case C‑368/04 Transalpine Ölleitung in Österreich (pending before the Court, paragraph 67 et seq.). 9 – Case C-72/03 Carbonati Apuani [2004] I-8027, paragraph 11. 10 – See, in particular, Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 75. 11 – See, to this effect, Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraphs 16 to 18, and Case C-244/94 FFSA and Others [1995] ECR I-4013, paragraph 21. 12 – Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21. 13 – See, to this effect, Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 21. 14 – See, on this point, my Opinion in Case C-205/03 P FENIN v Commission (pending before the Court). 15 – Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 75. 16 – Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 37. 17 – See, for example, Case C-172/03 Heiser [2005] ECR I-1627, paragraph 36. 18 – See Campobasso, G.F., Diritto commerciale, Vol. 2, Turin, Fifth edition, 2002, p. 485. The law in this area has since been amended to add to the list of legitimate grounds for withdrawal but without changing the exhaustive nature of the list (see, on this point, the special issue of Rivista delle società, March-June 2005). 19 – See, to this effect, Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 30. 20 – Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 24. 21 – Joined Cases C-72/91 and C-73/91 [1993] ECR I-887, paragraph 21. 22 – See, to this effect, Sloman Neptun, paragraph 21; Ecotrade, paragraph 36; and Case C-379/98 PreussenElektra [2001] ECR I‑2099, paragraph 62. 23 – That would be the case, for example, of legislation making it easier to dismiss employees in a particular sector or of a measure authorising an undertaking to build in a zone requiring major infrastructure to be put in place. In that regard, it will be recalled that for the purposes of categorisation as State aid the Court makes no distinction according to whether the advantages are granted directly or indirectly through State resources (see, in particular, PreussenElektra, paragraph 58). 24 – Point 47 of his Opinion in Sloman Neptun. Indeed, this criterion is already used by the Court. In Ecotrade, it seems that the decisive factor was that the legislation in question was liable to place the undertakings to which it applies in a more favourable situation than others (paragraphs 41 and 42). See also, to the same effect, the much earlier judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 33. 25 – Case 290/83 Commission v France [1985] ECR 439, paragraph 14. 26 – Italy v Commission, paragraph 33; Ecotrade, paragraph 36; and Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementerke, paragraph 42. 27 – See, in relation to this view, the Opinion of Advocate General Darmon in Sloman Neptun, point 53, and that of Advocate General Mischo in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementerke, point 43. 28 – Such measures are characterised by the fact that they concentrate the benefits in a group of economic agents while the costs are spread over the whole of society and become, by virtue of that fact, difficult to identify for the other economic agents. It is measures of this kind that are most likely to be adopted for the benefit of certain vested interests rather than being motivated by the wider public interest.