Judgment of the Court (Fifth Chamber) of 24 February 1994. - Fonderia A. SpA v Cassa Conguaglio per il Settore Elettrico. - Reference for a preliminary ruling: Consiglio di Stato - Italy. - State aid - Interpretation of Decision Nº 83/396/ECSC - Determination of the period of application of an aid. - Case C-100/92.



European Court reports 1994 Page I-00561



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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ECSC - Aid for the steel industry - Authorization by the Commission - Interpretation of an authorization decision for the purposes of determining the period covered by the authorization

(Commission Decision No 83/396, Art. 1)

Summary

Article 1 of Decision No 83/396 concerning the aids that the Italian Government proposes to grant to certain steel undertakings does not preclude application of Article 1 of Decree-law No 495 of 4 September 1981 on urgent measures to assist the steel industry and on pollution abatement plants, as amended by Conversion Law No 617 of 4 November 1981, in so far as it provides for the reimbursement of increases in the electricity surcharge on electricity consumed by steel undertakings between 1 January and 30 June 1983.

In authorizing the defrayal by the exchequer of increases in the electricity surcharge decided between 31 March 1981 and 31 December 1982, Article 1 of Decision 83/396 was intended to refer to the period in which the said increases were decided, not to the period within which the electricity on which the surcharge could be defrayed by the Italian State was consumed.

Parties

In Case C-100/92,

REFERENCE to the Court under Article 41 of the ECSC Treaty by the Consiglio di Stato (Italy) for a preliminary ruling in the proceedings pending before that court between

Fonderia A. SpA

and

Cassa Conguaglio per il Settore Elettrico

on the interpretation of Commission Decision No 83/396/ECSC of 29 June 1983 concerning the aids that the Italian Government proposes to grant to certain steel undertakings (Official Journal 1983 L 227, p. 24),

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, D.A.O. Edward, R. Joliet (Rapporteur), G.C. Rodríguez Iglesias and F. Grévisse, Judges,

Advocate General: C. Gulmann,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Fonderia A. SpA, by Angelo Picotti, of the Brescia Bar,

- the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs at the Ministry of Foreign Affairs, acting as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato,

- the Commission of the European Communities, by Lucio Gussetti and Vittorio Di Bucci, members of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Fonderia A. SpA, the Italian Government and the Commission at the hearing on 27 May 1993,

after hearing the Opinion of the Advocate General at the sitting on 15 July 1993,

gives the following

Judgment

Grounds

1 By a decision of 6 February 1992, which was received at the Court Registry on 27 March 1992, the Consiglio di Stato referred a question to the Court pursuant to Article 41 of the ECSC Treaty on the interpretation of Commission Decision No 83/396/ECSC of 29 June 1983 concerning the aids that the Italian Government proposes to grant to certain steel undertakings (Official Journal 1983 L 227, p. 24).

2 The question arose in the course of an action for annulment brought by the Italian steel undertaking Fonderia A. SpA (hereinafter referred to as "Fonderia") against a decision by which the Cassa Conguaglio per il Settore Elettrico (Compensation Fund for the Electricity Sector) refused to allow it State aid, on the basis of the above-mentioned Commission decision.

3 Article 1 of Decree-law No 495 of 4 September 1981 on urgent measures to assist the steel industry and on pollution abatement plants (GURI No 244 of 5.9.1981, hereinafter referred to as the "Decree-law"), as amended by Conversion Law No 617 of 4 November 1981 (GURI No 303 of 4.11.1981), introduced an aid to assist certain electric steel-makers in the form of a reduction in the price of electricity. The aid consisted in the reimbursement by the Italian State of increases in the "sovrapprezzo termico", a surcharge on the price of electricity introduced to encourage energy savings, the amount of which was revised periodically by the Interministerial Price Committee. Pursuant to the same Decree-law, the aid was limited to increases in the electricity surcharge (a) decided by the Interministerial Price Committee after 31 March 1981 and (b) raising the cost of electricity consumed between 6 September 1981 (the date on which the Decree-law entered into force) and 30 June 1983.

4 In accordance with the provisions of Decision No 2320/81/ECSC of 7 August 1981 establishing Community rules for aids to the steel industry (Official Journal 1981 L 228, p. 14), the Italian Government notified the Commission of the planned aid.

5 By Decision No 83/396 (Article 1(3)), the Commission gave authorization for private producers to benefit from

"defrayal by the exchequer of increases in the electricity surcharge (sovrapprezzo termico) decided by the Interministerial Price Committee between 31 March 1981 and 31 December 1982".

6 On 17 April 1987, the Cassa Conguaglio per il Settore Elettrico, the body responsible, under the national legislation, for refunding increases in the electricity surcharge, rejected, on the basis of Decision No 83/396, the claim for reimbursement submitted by Fonderia in respect of the electricity which it had consumed between 1 January and 30 June 1983. The Cassa Conguaglio per il Settore Elettrico took the view that the Commission had limited the Italian Government' s aid to the period from 31 March 1981 to 31 December 1982.

7 The Tribunale Amministrativo Regionale del Lazio dismissed the action brought by Fonderia for annulment of the decision of the Cassa Conguaglio per il Settore Elettrico and the company appealed to the Consiglio di Stato. That court considered that the case turned on the scope of the Commission' s decision and asked the Court to rule on the following question:

"Did Commission Decision No 83/396, in authorizing the aids provided for by the domestic provisions under review and in determining the limits thereof, intend to authorize only the defrayal by the exchequer of the increases in the electricity surcharge within the period from 31 March 1981 to 31 December 1982 or the said increases, decided on by the Interministerial Price Committee by means of measures adopted within that period, without any change to the time-limit for the defrayal of the charge laid down in the domestic provisions (30 June 1983); accordingly, was the defrayal by the exchequer of the increases in the electricity surcharge for the period from 1 January to 30 June 1983 authorized?"

8 By that question, the national court is asking essentially whether Article 1 of Commission Decision No 83/396 precludes application of the Italian legislation in so far as the latter provides for the reimbursement of increases in the electricity surcharge on the electricity consumption of steel-makers between 1 January and 30 June 1983.

9 It should be noted, first, that the dates of 31 March 1981 and 31 December 1982, referred to in Article 1 of the Commission' s decision, must necessarily indicate only the beginning and end of a period relating to the same circumstance, either the period within which the decisions to increase the electricity surcharge were taken or the period within which the electricity on which the surcharge could be defrayed by the Italian State was consumed.

10 Secondly, the date of 31 March 1981 which appears in the Commission' s decision also appears in the Italian Decree-law. The Decree-law refers to that date in order to specify that only increases in the electricity surcharge decided after that date will be taken into account.

11 In the circumstances, the dates of 31 March 1981 and 31 December 1982 referred to in the Commission' s decision can be understood only as marking the beginning and end of the period within which the decisions to increase the electricity surcharge would be taken. They do not affect the period within which the electricity on which the surcharge could be defrayed by the Italian State was consumed.

12 That interpretation is borne out by the fact that during its examination of the aid the Commission did not once question or raise any objection to the electricity consumption period specified in the Italian Decree-law over which the electricity surcharge could be defrayed by the Italian State. There is no passage in the recitals, which are very detailed, nor in the actual decision, alluding to that period for the purpose of raising an objection. The sole conditions laid down by the Commission for approval of the aid proposed by the Italian Government concern the reductions in production capacity to be made by the undertakings receiving aid and the rules governing payment of the aid (Articles 2 to 5).

13 The reply to the question referred to the Court must therefore be that Article 1 of Commission Decision No 83/396/ECSC of 29 June 1983 concerning the aids that the Italian Government proposes to grant to certain steel undertakings does not preclude application of Article 1 of Decree-law No 495 of 4 September 1981 on urgent measures to assist the steel industry and on pollution abatement plants, as amended by Conversion Law No 617 of 4 November 1981, in so far as it provides for the reimbursement of increases in the electricity surcharge on electricity consumed by steel undertakings between 1 January and 30 June 1983.

Decision on costs

Costs

14 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Consiglio di Stato by decision of 6 February 1992, hereby rules:

Article 1 of Commission Decision No 83/396/ECSC of 29 June 1983 concerning the aids that the Italian Government proposes to grant to certain steel undertakings does not preclude application of Article 1 of Decree-law No 495 of 4 September 1981 on urgent measures to assist the steel industry and on pollution abatement plants, as amended by Conversion Law No 617 of 4 November 1981, in so far as it provides for the reimbursement of increases in the electricity surcharge on electricity consumed by steel undertakings between 1 January and 30 June 1983.