Fallimento Traghetti del Mediterraneo SpA v Presidenza del Consiglio dei Ministri.
Date: 2010-06-10
22. As regards the wording of the question itself and the questions raised by the national court, it is to be borne in mind, first, that the Court does not have jurisdiction to rule upon the compatibility of a national measure with European Union law (see, inter alia, Case C-118/08 Transportes Urbanos y Servicios Generales  [2010] ECR I-0000, paragraph 23 and case-law cited). Nor does the Court have jurisdiction to rule on the compatibility of State aid or of an aid scheme with the common market, since that assessment falls within the exclusive competence of the European Commission, subject to review by the Court (see Case C‑237/04 Enirisorse [2006] ECR I-2843, paragraph 23). The Court also has no jurisdiction to give a ruling on the facts in an individual case or to apply the European Union law rules which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I-2941, paragraph 69 and case-law cited).
23. It follows that, in the present case, the Court does not have jurisdiction to give a ruling on the compatibility of Law No 684 with European Union law or on the compatibility of the subsidies at issue in the main proceedings with the common market nor to assess the facts of the main proceedings in order to determine whether the subsidies have affected trade between Member States and distorted or threatened to distort competition.
24. However, the Court does have jurisdiction to give the national court full guidance on the interpretation of European Union law in order to enable it to determine the issue of compatibility of a national measure with that law for the purposes of deciding the case before it (see Enirisorse , paragraph 24, and Transportes Urbanos y Servicios Generales , paragraph 23). In the area of State aid, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation in order to enable it to determine whether a national measure may be classified as State aid under European Union law (see, to that effect, in particular, Case C‑53/00 Ferring  [2001] ECR I‑9067, paragraph 29; Enirisors e, paragraphs 25 and 51; Servizi Ausiliari Dottori Commercialisti , paragraphs 54 and 72; Case C‑206/06 Essent Netwerk Noord and O thers [2008] ECR I‑5497, paragraph 96; and Case C‑222/07 UTECA  [2009] ECR I-1407, paragraphs 41 and 47).
29. It is to be observed in that regard that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of European Union law bears no relation to the actual facts of the main action or where the problem is hypothetical (see, inter alia, Case C-429/05 Rampion and Godard  [2007] ECR I-8017, paragraphs 23 and 24, and Case C‑387/07 MI.VER and Antonelli  [2008] ECR I-9597, paragraph 15 and case-law cited).
31. It should be recalled that, in accordance with settled case-law, classification as aid requires all the following conditions to be fulfilled. First, there must be 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, to that effect, in particular, Case C-142/87 Belgium  v Commission  [1990] ECR I-959 ( ‘Tubemeuse’ ), paragraph 25; Altmark Trans and Regierungspräsidium Magdeburg , paragraphs 74 and 75; Enirisorse , paragraphs 38 and 39; Servizi Ausiliari Dottori Commercialisti , paragraphs 55 and 56; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste  v UFEX and Others  [2008] ECR I‑4777, paragraphs 121 and 122; Essent Netwerk Noord and Others , paragraphs 63 and 64; and UTECA , paragraph 42).
34. Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid ( SFEI and Others , paragraph 60; Altmark Trans and Regierungspräsidium Magdeburg , paragraph 84; Servizi Ausiliari Dottori Commercialisti , paragraph 59; and Essent Network Noord and Others , paragraph 79).
35. By contrast, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure does not constitute State aid under European Union law (see the judgments in Ferring , paragraphs 23 and 25, and Altmark Trans and Regierungspräsidium Magdeburg , paragraph 87, in response to questions referred for a preliminary ruling prior to the judgment of the Corte suprema di cassazione of 19 April 2000, at issue in the main proceedings; and Servizi Ausiliari Dottori Commercialisti , paragraph 60, and Essent Netwerk Noord and Others , paragraph 80).
36. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88; Servizi Ausiliari Dottori Commercialisti , paragraph 61; and Essent Netwerk Noord and Others , paragraph 81).
37. First, the undertaking receiving such compensation must actually have public service obligations to discharge, and the obligations must be clearly defined ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 89; Servizi Ausiliari Dottori Commercialisti , paragraph 62; and Essent Netwerk Noord and Others , paragraph 82).
38. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 90; Servizi Ausiliari Dottori Commercialisti , paragraph 64; and Essent Netwerk Noord and Others , paragraph 83).
39. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92; Servizi Ausiliari Dottori Commercialisti , paragraph 66; and Essent Netwerk Noord and Others , paragraph 84).
40. Fourth, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 93; Servizi Ausiliari Dottori Commercialisti , paragraph 67; and Essent Netwerk Noord and Others , paragraph 85).
49. In that connection, the fact that the restrictions on the freedom to provide maritime transport services within Member States were abolished after the relevant period in the main proceedings does not necessarily exclude the possibility that the subsidies at issue in the main proceedings were liable to affect trade between Member States or that they distorted or threatened to distort competition.