Presidenza del Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo SpA.
Date: 2019-01-23
36


In that regard, it must be recalled that, according to the Court’s settled case-law, classification of a national measure as ‘State aid’ requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53).
38


In that connection, it must be noted that whilst it is true that State aid may, in principle, be treated as existing aid because it can be established that at the time it was put into effect, inter alia because of the absence of liberalisation of the market in question, it did not constitute aid, the Court has already held that such absence of liberalisation does not necessarily exclude the possibility that an aid measure is liable to affect trade between Member States or that it distorts or threatens to distort competition (see, to that effect, judgment of 10 June 2010, Fallimento Traghetti del Mediterraneo, C‑140/09, EU:C:2010:335, paragraph 49).
42


In that regard, it should be recalled that, as is apparent from paragraph 50 of the judgment of 10 June 2010, Fallimento Traghetti del Mediterraneo (C‑140/09, EU:C:2010:335), it cannot be excluded, first, that Tirrenia was in competition with undertakings from other Member States on the domestic routes concerned and, secondly, that it was in competition with such undertakings on international routes and that, in the absence of any separate accounting for its various activities, there was a risk of cross-subsidisation, that is to say, a risk that the revenue from its cabotage activity, which received the subsidies at issue in the main proceedings, was used for the benefit of activities carried on by it on its international routes.
52


Furthermore, Article 15(1) of Regulation No 659/1999 provides that the powers of the Commission to recover aid are to be subject to a limitation period of 10 years.
54


In that regard, according to the settled case-law of the Court, the implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 27 and the case-law cited).
55


In particular, the assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the EU judicature, whereas it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aid to the Commission pursuant to Article 93(3) of the EEC Treaty has been infringed (see, to that effect, judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 38).
58


In that regard, it is settled case-law of the Court that the initiation by the Commission of the formal examination procedure for State aid cannot release national courts from their duty to safeguard the rights of individuals faced with a possible breach of Article 93(3) of the EEC Treaty (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 32).
59


Similarly, it should be recalled that, concerning the level of independence of the national courts, a Commission decision finding aid that was not notified to be compatible with the internal market does not have the effect of regularising ex post facto implementing measures which were invalid because they were taken in disregard of the prohibition laid down by the last sentence of Article 93(3) of the EEC Treaty, since otherwise the direct effect of that provision would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded. Any other interpretation would have the effect of according a favourable outcome to the non-observance of that provision by the Member State concerned and would deprive it of its effectiveness (judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 41 and the case-law cited).
66


Furthermore, it must be recalled that, in so far as Regulation No 659/1999 contains rules of a procedural nature which apply to all administrative procedures in the matter of State aid pending before the Commission, it codifies and reinforces the Commission’s practice in reviewing State aid and does not contain any provision relating to the powers and obligations of the national courts, which continue to be governed by the provisions of the Treaty as interpreted by the Court (see, to that effect, judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraphs 34 and 35).
68


Next, concerning the possibility of relying on the principle of the protection of legitimate expectations, it should be noted that that principle cannot be relied on by a person who has infringed the legislation in force (see, to that effect, judgment of 14 July 2005, ThyssenKrupp v Commission, C‑65/02 P and C‑73/02 P, EU:C:2005:454, paragraph 41).
70


It follows that, where subsidies were granted in breach of the obligation of prior notification laid down in Article 93(3) of the EEC Treaty, State entities cannot rely on the principle of the protection of legitimate expectations (see, to that effect, judgment of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraph 104).
71


Finally, as regards the application of the principle of legal certainty in a situation such as that at issue in the main proceedings, it should be recalled that, in general, limitation periods fulfil the function of ensuring legal certainty (judgment of 13 June 2013, Unanimes and Others, C‑671/11 to C‑676/11, EU:C:2013:388, paragraph 31). In order to fulfil their function of ensuring legal certainty, those periods must be fixed in advance and any application ‘by analogy’ of a limitation period must be sufficiently foreseeable for a person (see, to that effect, judgment of 5 May 2011, Ze Fu Fleischhandel and Vion Trading, C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 32 and the case-law cited).
72


In that regard, and since there is no Community legislation on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from Community law, provided, firstly, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, secondly, that they do not render impossible or excessively difficult in practice the exercise of rights conferred by the Community legal order (principle of effectiveness) (judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 45).