Istituto nazionale della previdenza sociale (INPS) v Azienda Napoletana Mobilità SpA.
Date: 2019-07-29
20


According to settled case-law, classification of a measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires that all of the following conditions be fulfilled. First, there must be an intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 43 and the case-law cited).
25


As the Court has already had occasion to confirm, the Commission explained in recital 65 of that decision that, in general terms, the selective reductions of social security contributions provided for by the Italian legislation at issue in the main proceedings distort competition and, in so far as that effect extends to trade between Member States, that trade is affected; recital 66 of that decision merely illustrates that assessment using the example of the production sector (judgment of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 88).
27


It is settled case-law that, in the case of an aid scheme such as that at issue in the main proceedings, the Commission may confine itself to an examination of the characteristics of the scheme at issue in order to assess, in the grounds for its decision, whether, by reason of the arrangements provided for under the scheme, the latter confers an advantage on beneficiaries in relation to their competitors and is likely to benefit undertakings engaged in trade between Member States. Thus, in a decision which concerns such a scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see, to that effect, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63 and the case-law cited).
28


As a result, before proceeding to the recovery of an advantage, the national authorities of a Member State are required to verify, in each individual case, whether the advantage granted was, in the hands of its beneficiary, capable of distorting competition and affecting trade between the Member States (see, to that effect, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 64 and 115).
29


In that regard, it is important to bear in mind that, for the purpose of categorising a national measure as ‘State aid’, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but merely to examine whether that aid is liable to affect such trade and to distort competition (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 78 and the case-law cited).
30


In particular, when aid granted by a Member State strengthens the position of certain undertakings as compared with that of other undertakings competing in trade between Member States, such trade must be regarded as being affected by the aid. In that regard, it is not necessary that the beneficiary undertakings themselves be involved in trade between Member States. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 79 and the case-law cited).
31


Consequently, the condition that the aid must be capable of affecting trade between Member States does not depend on the local or regional character of the transport services supplied (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 82, and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 69).
32


As regards the requirement that competition be distorted, it should be noted that, in principle, aid intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities distorts the conditions of competition (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 80 and the case-law cited).
36


In that regard, it is important to note that since 1995 several Member States have started to open certain transport markets to competition from undertakings established in other Member States, with the result that, during the period from 1997 to 2001, a number of undertakings already offered their urban, suburban or regional transport services in Member States other than their State of origin (see, to that effect, judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 79).
42


If it were established that ANM engaged in activities on other markets during that period, it could not be ruled out that the social security payment reductions from which that company benefited under the Italian legislation at issue in the main proceedings distorted competition and affected trade between Member States on those other markets, unless those activities did not benefit from those reductions and any risk of cross-subsidisation had been excluded through demonstration that the undertaking kept separate accounts, thus ensuring that those reductions had been unable to benefit those activities (see, to that effect, judgments of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 51, and of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraph 42).