Enirisorse SpA v Sotacarbo SpA.
Date: 2006-03-23
16. The Italian Government and the Commission of the European Communities, for their parts, point out that, as is apparent from the judgment in Case C‑295/97 Piaggio  [1999] ECR I-3735, paragraphs 29 to 33, in the context of a reference for a preliminary ruling it is not for the Court to rule on the compatibility of any potential State aid with the common market. Thus, the Court can only assess whether the national provision in question falls within the definition of ‘State aid’ or not. In those circumstances, the Italian Government considers that the part of the first question referred for a preliminary ruling, which seeks determination of whether the measure in the main proceedings constitutes State aid incompatible with the common market, is inadmissible. The Commission, for its part, suggests reformulating the first question so that the Court may give an answer which is of use to the national court. Concerning the second question referred for a preliminary ruling, the Italian Government and the Commission consider that, in so far as the national court has not stated which specific grounds moved it to refer that question, it is inadmissible.
The Court’s reply
17. It must first be recalled that, according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Joined Cases C-115/97 to C‑117/97 Brentjens’  [1999] ECR I-6025, paragraph 38; Case C-207/01 Altair Chimica  [2003] ECR I-8875, paragraph 24; and Case C-72/03 Carbonati Apuani  [2004] ECR I-8027, paragraph 10).
18. Thus, the information provided in the order for reference must not only enable the Court to reply usefully but must also give the governments of the Member States and the other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties (see, inter alia, order in Joined Cases C-128/97 and C-137/97 Testa and Modesti  [1998] ECR I-2181, paragraph 6; order in Case C-325/98 Anssens  [1999] I‑2969, paragraph 8; and Altair Chimica , paragraph 25).
21. Next, as regards specifically the second question referred for a preliminary ruling, the Court has held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (order in Case C‑116/00 Laguillaumie  [2000] ECR I-4979, paragraph 16, and Carbonati Apuani , paragraph 11).
23. Lastly, as regards the first question referred, it is settled case-law that the assessment of the compatibility of aid measures or of an aid scheme with the common market falls within the exclusive competence of the Commission, subject to review by the Court (Case C-354/90 FNCE  [1991] ECR I‑5505, paragraph 14; Case C-39/94 SFEI and Others  [1996] ECR I‑3547, paragraph 42; and Piaggio , paragraph 31). Consequently, a national court or tribunal may not, in a reference for a preliminary ruling under Article 234 EC, ask the Court for guidance as to the compatibility with the common market of a given State aid or an aid scheme (order in Case C‑297/01 Sicilcassa and Others  [2003] ECR I-7849, paragraph 47).
24. However, the Court has also repeatedly ruled that, although it is not its task, in proceedings brought under Article 234 EC, to rule upon the compatibility of provisions of domestic law with Community law or to interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C-292/92 Hünermund and Others  [1993] ECR I-6787, paragraph 8; Case C-28/99 Verdonck and Others  [2001] ECR I-3399, paragraph 28; Case C‑399/98 Ordine degli Architetti and Others  [2001] ECR I‑5409, paragraph 48; and Joined Cases C-285/99 a nd C-286/99 Lombardini and Mantovani  [2001] ECR I-9233, paragraph 27).
27. In the first place, it is appropriate to establish whether Sotacarbo constitutes an undertaking for the purpose of that provision.
28. In that regard, it must be observed that, according to settled case-law, in the field of competition law the concept of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser  [1991] ECR I-1979, paragraph 21; Case C-67/96 Albany [1999] ECR I-5751, paragraph 77; Joined Cases C‑180/98 to C-184/98 Pavlov and Others  [2000] ECR I-6451, paragraph 74; and Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑0000, paragraph 107).
29. Any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission  v Italy  [1987] ECR 2599, paragraph 7; Case C-35/96 Commission  v Italy  [1998] ECR I‑3851, paragraph 36; Pavlov and Others , paragraph 75; and Cassa di Risparmio di Firenze and Others , paragraph 108).
30. In this instance, although it is for the national court to make the final assessment in this respect, various aspects of the documents available to the Court indicate that Sotacarbo’s activity is liable to be of an economic nature.
31. As the Advocate General observes in point 25 of his Opinion, Sotacarbo’s objects include developing new technologies for the use of coal and providing specialist support services for authorities, public bodies and companies interested in the development of those technologies. An undertaking’s economic activity generally consists in precisely that kind of activity. Moreover, it is not disputed that Sotacarbo is run for profit.
34. Secondly, the Court has already held that the fact that a body is entrusted with some public interest tasks does not prevent the activities at issue from being regarded as economic activities (see, to that effect, Case C‑475/99 Ambulanz Glöckner  [2001] ECR I-8089, paragraph 21).
38. The Court has repeatedly held that classification as aid requires that all the conditions set out in Article 87(1) EC are fulfilled (see Case C-142/87 Belgium  v Commission , ‘Tubemeuse’ , [1990] ECR I-959, paragraph 25;  Joined Cases C‑278/92 to C-280/92 Spain  v Commission  [1994] ECR I-4103, paragraph 20; Case C-482/99 France  v Commission  [2002] ECR I‑4397, paragraph 68; and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I‑7747, paragraph 74).
39. Thus, first, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition (see Altmark Trans and Regierungspräsidium Magdeburg , paragraph 75, and Case C-172/03 Heiser  [2005] ECR I-1627, paragraph 27).
42. In that context, it is settled case-law that the concept of aid embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (see, in particular, Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I-8365, paragraph 38, and Heiser , paragraph 36).
50. Given that the conditions referred to in Article 87(1) EC must be applied concurrently (see paragraph 38 of this judgment), there is no further need to consider whether the other aspects of the concept of State aid are met in this instance.