Ecotrade Srl v Altiforni e Ferriere di Servola SpA (AFS).
Date: 1998-12-01
25 It should 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-415/93 Union Royale Belge des Sociétés de Football Association ASBL and Others v Bosman and Others [1995] ECR I-4921, paragraph 59).
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 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19, and Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13).
35 Furthermore, as the Court has ruled in connection with Article 92(1) of the EC Treaty, the expression `aid', for the purposes of Article 4(c) of the ECSC 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 Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25, paragraphs 23 to 25; Joined Cases 213/81 to 215/81 Norddeutsches Vieh- und Fleischkontor Will and Others v BALM [1982] ECR 3583, paragraph 22; Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraphs 19 and 21; Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 16; and Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13).
36 Contrary to the view taken by the Commission, the possible loss of tax revenue for the State as a result of the application of the system of special administration, on account of the absolute prohibition on individual actions for enforcement and the suspension of interest on all debts owed by the undertaking in question, and the correlated reduction in creditors' profits, does not in itself justify treating that system as aid. That consequence is an inherent feature of any statutory system laying down a framework for relations between an insolvent undertaking and the general body of creditors, and the existence of an additional financial burden borne directly or indirectly by the public authorities as a means of granting a particular advantage to the undertakings concerned may not automatically be inferred therefrom (see, to that effect, Sloman Neptun, cited above, paragraph 21).
38 In the first place, it is apparent from the documents before the Court that Law No 95/79 is intended to apply selectively to large industrial undertakings in difficulties which owe particularly large debts to certain, mainly public, classes of creditors. As the Advocate General has stated at paragraph 26 of his Opinion, it is even highly probable that the State or public bodies will be among the principal creditors of the undertaking in question.
39 Furthermore, even if the decisions of the Minister for Industry to place the undertaking in difficulties under special administration and to permit 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 Italian Government itself has acknowledged in its pleadings and at the hearing, by the concern to maintain the undertaking's economic activity in the light of national industrial policy considerations.
40 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).
41 Second, whatever the objective pursued by the national legislature, it would seem that the legislation in question is liable to place the undertakings to which it applies in a more favourable situation than others, inasmuch as it allows them to continue trading in circumstances in which that would not be allowed if the usual insolvency rules were applied, since those rules are decisive when it comes to protecting creditors' interests. In view of the priority accorded to debts connected with the pursuit of economic activity, authorisation to continue trading might, in those circumstances, involve an additional burden for the public authorities if it were in fact established that the State or public bodies were among the chief creditors of the undertaking in difficulties, all the more so because, by definition, that undertaking owes debts of considerable value.
43 Those advantages, conferred by the national legislature, might also entail an additional burden for the public authorities in the form of a State guarantee, waiver in practice 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 shown that placing an undertaking under special administration and allowing it to continue trading did not in actual fact entail an additional burden for the State, compared to the situation that would have arisen had the usual insolvency rules been applied.