Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA v International Factors Italia SpA (Ifitalia), Dornier Luftfahrt GmbH and Ministero della Difesa.
Date: 1999-06-17
24 It should, moreover, be borne in mind that it is solely for the national court before which the 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 (see, inter alia, Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, paragraph 25).
25 In this case it need merely be observed that the question whether a system such as that established by Law No 95/79 must be classified as a new or as an existing aid, which the Court will examine of its own motion hereinafter in the context of the close cooperation which it is required to establish with national courts, is not irrelevant to the resolution of the dispute in the main proceedings, bearing in mind the inferences which the national court may have to draw, in the light of Articles 92 and 93 of the Treaty, from the absence of any prior notification to the Commission of the aid system that may be in issue.
29 It is settled case-law that, within the framework of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to interpret national law or to give a ruling on the compatibility of a national measure with Community law (Case C-188/91 Deutsche Shell v Hauptzollamt Hamburg-Harburg [1993] ECR I-363, paragraph 27).
30 More particularly concerning the review of Member States' compliance with their obligations under Articles 92 and 93 of the Treaty, the national courts and the Commission fulfil complementary and separate roles, as the Court pointed out in its judgment in Case C-39/94 SFEI and Others v La Poste [1996] ECR I-3547, paragraph 41 et seq.).
31 Whilst assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the Court, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aids to the Commission pursuant to Article 93(3) of the Treaty is infringed.
32 In order to determine whether a State measure introduced without taking account of the preliminary examination procedure laid down in Article 93(3) of the Treaty should have been subject to that procedure, a national court may have cause to interpret the concept of aid contained in Article 92 of the Treaty.  If, as the order for reference shows to be the case here, that court has doubts as to whether the measure in question should be classified as a State aid, it may ask the Commission for clarifications on that point or, in accordance with the second and third paragraphs of Article 177 of the Treaty, it may or must put a question to the Court for a preliminary ruling on the interpretation of Article 92 of the Treaty (SFEI, paragraphs 49 to 51).
33 In order therefore to give a useful answer to the national court, it is necessary to consider whether a system of the kind established by Law No 95/79, and derogating from the rules of ordinary insolvency law, must be classified as State aid within the meaning of Article 92 of the Treaty and should have been notified to the Commission prior to its implementation pursuant to Article 93(3) of the Treaty.
Classification as aid
34 As the Court has already held, the concept of aid is wider than that of a subsidy because it embraces not only positive benefits, such as subsidies themselves, 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 (Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13; Ecotrade, paragraph 34).
35 The expression `aid', within the meaning of Article 92(1) of the Treaty, necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose (see, in particular, Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13).
37 First, it is apparent from the documents before the Court that Law No 95/79 is intended to apply selectively for the benefit of large industrial undertakings in difficulties which owe particularly large debts to certain, mainly public, classes of creditors.  As the Court held in paragraph 38 of its judgment in Ecotrade, it is even highly probable that the State or public bodies will be among the principal creditors of the undertaking in question.
38 It is also important to note that, even if the decisions of the Minister for Industry to place the undertaking in difficulties under special administration and to allow it to continue trading are taken with regard, as far as possible, to the interests of the creditors and, in particular, to the prospects for increasing the value of the undertaking's assets, they are also influenced, as the Court held in paragraph 39 of its judgment in Ecotrade and as the national court has confirmed, by the concern to maintain the undertaking's economic activity in the light of national industrial policy considerations.
39 In those circumstances, having regard to the class of undertakings covered by the legislation in issue and the scope of the discretion enjoyed by the minister when authorising, in particular, an insolvent undertaking under special administration to continue trading, that legislation meets the condition that it should relate to a specific undertaking, which is one of the defining features of State aid (see, to that effect, Case C-241/94 France v Commission [1996] ECR I-4551, paragraphs 23 and 24).
42 Those advantages, conferred by the national legislature, could also entail an additional burden for the public authorities in the form of a State guarantee, a de facto waiver of public debts, exemption from the obligation to pay fines or other pecuniary penalties, or a reduced rate of tax. It could be otherwise only if it were established that placing the undertaking under special administration and allowing it to continue trading did not in fact entail or should not entail an additional burden for the State, compared to the situation that would have arisen had the ordinary insolvency provisions been applied.  It is for the national court to verify those matters, after seeking clarification from the Commission if need be.
44 Article 93 of the Treaty provides that aid is to be kept under constant review by the Commission and lays down the procedures for that purpose.  In relation to new aid which Member States may intend to grant, there is a preliminary procedure without which no aid can be considered properly granted.  In accordance with the first sentence of Article 93(3) of the Treaty, the Commission must be informed of any plans to grant or alter aid prior to such plans being put into effect.
48 As the Court has already held in Case C-44/93 Namur-Les Assurances du Crédit v OND [1994] ECR I-3829, at paragraph 13 of the judgment, it is clear from both the terms and purposes of Article 93 that aid which existed before the entry into force of the Treaty and aid which could be properly put into effect under the conditions laid down in Article 93(3) of the Treaty, including aid arising from the interpretation of that article given by the Court in its judgment in Case 120/73 Lorenz v Germany [1973] ECR 1471, paragraphs 4 to 6, is to be regarded as existing aid within the meaning of Article 93(1), whereas measures to grant or alter aid, where the alterations may relate to existing aid or initial plans notified to the Commission, must be regarded as new aid subject to the obligation of notification laid down by Article 93(3).
49 Accordingly, since it is established that a system such as that introduced by Law No 95/79 is in itself capable of giving rise to the grant of State aid within the meaning of Article 92(1) of the Treaty, that system cannot be put into operation unless it has been notified to the Commission and, if it has been so notified, before the Commission has made a decision acknowledging that the aid plan is compatible with the common market, or, if the Commission takes no decision within a period of two months from the notification, before that period has expired (see Lorenz, paragraph 4).