Poste Italiane SpA v Riscossione Sicilia SpA agente riscossione per la provincia di Palermo e delle altre provincie siciliane and Agenzia delle entrate – Riscossione v Poste Italiane SpA.
Date: 2021-03-03
In the first place, it must be borne in mind that, in the context of the cooperation between the Court and the national courts established in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 19 December 2019, Darie, C‑592/18, EU:C:2019:1140, paragraph 24 and the case-law cited).
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 8 October 2020, Union des industries de la protection des plantes, C‑514/19, EU:C:2020:803, paragraph 29 and the case-law cited).
In the second place, it should be borne in mind that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it (judgments of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 31 and the case-law cited).
To that end, the Court can extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 32 and the case-law cited).
As a preliminary point, it should be borne in mind that, although the Commission has, subject to review by the EU Courts, exclusive jurisdiction to assess the compatibility of aid with the internal market (see, to that effect, inter alia, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 99 and the case-law cited), that fact does not preclude a national court from referring to the Court of Justice a question on the interpretation of the definition of ‘aid’. Accordingly, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation of EU law to enable it to determine whether a national measure may be classified as ‘State aid’ under Article 107 TFEU (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 12 and the case-law cited).
In addition, in order to ensure the effectiveness of the requirement to inform the Commission of any plans to grant or alter aid, provided for in Article 108(3) TFEU, as well as proper and full consideration of State aid by the Commission, national courts are bound to draw all the consequences from a breach of that obligation and to adopt the measures that are appropriate to remedy them, even if the recipient of unlawful aid is an undertaking entrusted with the operation of a service of general economic interest in accordance with Article 106(2) TFEU (see, to that effect, judgment of 24 November 2020, Viasat Broadcasting UK, C‑445/19, EU:C:2020:952, paragraph 43).
It should also be noted that the examination of the question of whether the measure at issue should be categorised as ‘State aid’, within the meaning of Article 107 TFEU, which may involve the verification of the conditions laid down in the case-law arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), occurs before the examination of a measure of aid under Article 106(2) TFEU. That question must be resolved before the one which consists in examining, where necessary, if aid that is incompatible with the internal market is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU (see, to that effect, judgments of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 34, and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 102).
Categorisation as ‘State aid’ within the meaning of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary and that it distort or threaten to distort competition (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 46 and the case-law cited).
As regards, in the first place, the condition relating to intervention by the State or through State resources, it should be noted that the distinction established in Article 107(1) TFEU between ‘aid granted by a Member State’ and aid granted ‘through State resources’ does not mean that all advantages granted by the State constitute aid, whether they are financed with State resources or not, but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 26 and the case-law cited).
It follows that, in order for it to be possible to categorise advantages as ‘State aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be attributable to the State (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 47 and the case-law cited).
As regards, first, the condition that a measure of aid be attributable to the State, that condition renders it necessary to examine whether the public authorities were involved in the adoption of that measure (judgment of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 23).
As regards, second, the condition relating to the transfer of State resources, it is important to clarify that the concept of ‘State resources’ covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the aid measure are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources (judgments of 21 October 2020, Eco TLC, C‑556/19, EU:C:2020:844, paragraph 36 and the case-law cited, and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 30 and the case-law cited).
In the light of the information provided by the referring court and the documents available to the Court, it is important to make clear, in this regard, that a measure under which undertakings, whether public or private, are bound to an obligation to purchase or acquire services by means of their own financial resources does not constitute State aid. That obligation does not, in principle, involve the use of State resources, for the purposes of Article 107 TFEU. The opposite would be true, however, if those undertakings were considered to be appointed by the State to manage a State resource, which would be the case if it was prescribed that those extra costs incurred as a result of that obligation to purchase or acquire services were to be passed on entirely to end users, or that they were to be financed by a compulsory contribution imposed by the State or by a full offset mechanism (see, to that effect, judgments of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraphs 26 and 30 and the case-law cited, and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 68).
Moreover, resources of public undertakings may be regarded as State resources where the State is capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order to finance, where appropriate, advantages to the benefit of other undertakings (see, to that effect, judgment of 13 September 2017, ENEA, C‑329/15, EU:C:2017:671, paragraph 31 and the case-law cited).
Concerning, in the second place, the condition to the effect that the measure must confer a selective advantage on the recipient undertaking, it should be noted that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407,  paragraph 83 and the case-law cited).
In that regard, the Court has held that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, with the result that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of placing them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 107(1) TFEU (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87; of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 25; and of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 100).
In accordance with paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), in order for such a measure to escape classification as ‘State aid’, a number of conditions must be satisfied. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation must not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations. Lastly, where the undertaking responsible for discharging public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure aimed at selecting the bidder capable of providing that service at the least cost to the community, the level of compensation necessary must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations.
As regards the first condition laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), the Court held that that condition is designed to ensure transparency and legal certainty, and thus requires that minimum criteria be met in relation to the existence of one or more acts of public authority defining, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations imposed on the undertakings entrusted with the performance of those obligations. In the absence of a clear definition of such objective criteria, it is not possible to verify whether a particular activity may be covered by the concept of a service of general economic interest (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 86 and the case-law cited).
First, it is necessary 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 29 July 2019, Azienda Napoletana Mobilità, C‑659/17, EU:C:2019:633, paragraph 29 and the case-law cited).
Moreover, 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 29 July 2019, Azienda Napoletana Mobilità, C‑659/17, EU:C:2019:633, paragraph 30 and the case-law cited).
As to the remainder, it should be noted that, since the first condition laid down by the case-law arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) – that the beneficiary undertaking must have public service obligations to discharge which must be clearly defined – also applies where the derogation laid down in Article 106(2) TFEU has been invoked (judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 56 and the case-law cited), Article 106(2) TFEU cannot apply in the cases in the main proceedings, since it was held, in paragraph 64 above, that that condition is not satisfied in this instance. In any event, since the Commission has exclusive jurisdiction to assess the compatibility of aid with the internal market, as is apparent from the case-law set out in paragraph 33 above, the referring court does not have jurisdiction to examine whether the conditions for the application of Article 106(2) TFEU are satisfied.
In that regard, it should be borne in mind that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (judgments of 12 December 2013, Ragn-Sells, C‑292/12, EU:C:2013:820, paragraph 39, and of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 49 and the case-law cited).