Italy
| Author | Th. Jestaedt; J. Derenne; T. Ottervanger |
| Profession | Jones Day; Lovells; Allen & Overy |
| Pages | 605-628 |
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No specific legislation exists in Italy regulating the procedure by which public entities may enforce negative Commission decisions and recovery obligations, nor is there a central body having responsibility for coordinating the implementation of negative Commission decisions. While the first point of call for the Commission is the Permanent Representation of Italy to the EC, which liaises with the presidency of the Council of Ministers, it is the duty of the authorities granting the State aid to take all appropriate actions provided for under national law in order to achieve immediate and effective enforcement of Commission decisions.
A variety of instruments have been used by the Italian authorities for recovery purposes. Legislation has been adopted where the effects of the State aid were widespread and general and, in general, any time that State aid has been granted through legislative measures.
Conversely, ad hoc measures and administrative acts have been employed when the aid has not had a general effect. Such administrative acts are issued in accordance with administrative procedures that are characterised by the participation of the beneficiary in the proceedings. When the procedure for the recovery of State aid implies the issuance of administrative acts, the beneficiary may appeal to the administrative courts against these act, namely the regional administrative courts ("tribunali amministrativi regionali" or "TAR"), in the first instance, and the Administrative Supreme Court ("Consiglio di Stato") as a court of appeal where appropriate, in order to have the administrative acts declared null and void.
When an appeal is filed against an administrative act, the latter keeps its effectiveness until it is eventually declared null and void by the court by means of a final decision. In order to obtain a suspension of the effectiveness of the challenged administrative act during the course of the proceedings before the TAR, the claimant must file an ad interim application according to the procedure described below.
The claimant may file an ad interim application alleging that a risk of serious and irrecoverable harm to the claimant's interests will result from the contested administrative act during the proceedings and before the final judgment is given. Usually, the application is aimed at obtaining the stay of execution of the administrative act, in order to temporarily suspend its effects. The ad interim application cannot be filed before the main petition. Usually, it is filed together with the petition, but it may be filed subsequently.
The administrative courts deal with ad interim or cautionary applications when the ordinary case is pending. An ad interim application for a stay of execution is discussed at a single hearing ("camera di consiglio"), which must be held immediately after the filing of thePage 606 application (usually within 15-20 days from the filing of the application). The parties may file a defence and other documents and may attend the hearing (which is not public). The administrative courts rule on the ad interim application basing their decision on the application filed by the claimant and the defence filed by the defendant and any other interested parties. The defendant and other interested parties have the opportunity to rebut the claimant's claims of serious, imminent harm, both in writing in their defences, and orally by participating in the hearing. The administrative court rules by issuing an order, admitting or rejecting the application, and this is usually published the day after the hearing.
The administrative court may issue an order allowing the application when (i) there is a prima facie case ("fumus boni juris"); and 2) if the claimant proves that there is a risk of imminent danger in respect of the contested right ("periculum in mora"). An order allowing an ad interim application is not easily granted, although it is not regarded as extraordinary relief. At the hearing of the ad interim application, the claimant and/or the other parties may try to convince the administrative court that it would be better (for instance, due to the complexity of the case) to fix a short hearing to discuss the merits of the case rather than discussing the ad interim application. The president of the court (taking into account factors such as the importance of the case, the reasons for urgency, and the workload of the court) sometimes indicates a possible early date for a hearing on the merits of the case to the parties. If the claimant waives its application for interim measures, the president of the court decides the hearing on the merits.
The typical effect of an order allowing the application is a stay of execution ("suspension of effect") of the contested administrative measure until the decision on the merits of the case is rendered. The order may also be a mandatory or prohibitory injunction, and may also set the date for the hearing on the merits. The order may be appealed to the Administrative Supreme Court.
Where illegal or incompatible State aid was given in the form of tax benefits, the tax authority may use the instruments normally used for tax assessments under Decree of the President of the Republic No. 602/1973 ("DPR"). The Italian Tax Authority ("Agenzia delle Entrate") issues a notice of assessment to the taxpayer, rectifying the annual tax return and disclaiming the tax credit. Generally, if a taxpayer believes that a notice of assessment is unjustified or incorrect, it may file an appeal within 60 days with the provincial tax commission ("commissione tributaria provinciale") of the place where the office that issued the notice of assessment is situated. The taxpayer may lodge an appeal against the decision of the provincial tax commission with the regional tax commission ("commissione tributaria regionale") within 60 days. It may then appeal to the Supreme Court ("Corte di Cassazione") within 60 days on questions regarding the interpretation of law. If the tax credit is due at the end of the above procedure it will be definitively included in the tax rolls. The Italian Tax Authority then issues a notice of payment ("cartella di pagamento"). If the taxpayer does not pay the amount due within 60 days, the Italian Tax Authority is entitled to recover the money owed by way of coercive measures, and the procedure is regulated according to the ItalianPage 607 Code of Civil Procedure ("Codice di Procedura Civile"). The Italian Tax Authority is entitled to start an expropriation procedure ("espropriazione") within one year of the issue of the notice of payment. According to Italian tax legislation, the tax assessment shall be carried out only for tax years that are still subject to tax assessment. After this limitation period, which is five years for both direct taxes ("IRES" and "IRAP") and Value Added Tax ("VAT"), the Italian Tax Authority will have no opportunity to reclaim the tax credit. Where the Italian Tax Authority issues a notice of payment without having previously issued a notice of assessment, the taxpayer is entitled to appeal against it. The procedure is the same as that relating to the appeal of a notice of assessment. Conversely, if the Italian Tax Authority issues a notice of assessment which is not appealed within 60 days and subsequently issues a notice of payment, the latter cannot generally be appealed by the taxpayer.
In a number of cases, Italian authorities have decided to implement negative Commission decisions through the adoption of legislative measures. In particular:
- State Aid NN 165/2003 (2004/C12) relating to the grant of fiscal incentives to undertakings taking part in trade fairs abroad was declared incompatible with the Common Market by Commission Decision No. 2004/4676/EC of 14 December 2004. A legislative measure aimed at suspending the State aid is to be adopted, ordering the beneficiaries to repay sums equal to the tax benefit granted thereto;
- State Aid NN 57/2003 (2003/C57) relating to tax credits for firms investing in municipalities seriously affected by natural disasters granted by Law No. 27/2003 (so-called "Tremonti bis") was declared incompatible with the Common Market by Commission Decision No. 2004/3893/EC of 20 October 2004. A legislative measure aimed at suspending the State aid is to be adopted, ordering the beneficiaries to repay sums equal to the tax benefit granted pursuant to it. Compliance monitoring is expected to be carried out by the Italian Tax Authority, which shall be entitled to apply coercive measures if the payments are not made or incorrectly made;
- State Aid NN 70/2000 (2000/C54A) relating to the grant of fiscal incentives to Italian banks by Law No. 461/1998 and Legislative Decree No. 153/1999 was declared incompatible with the Common Market by Commission Decision No. 2001/3955/EC of 11 December 2001. The Italian government first adopted Law Decree No. 63/2002, which suspended the State aid and provided that an amount equal to the State aid should be set aside under a special accounting regime. The Italian authorities also carried out investigation procedures in order to estimate the amount of State aid to be repaid. The Italian parliament subsequently adopted Law No. 282 on 24 December 2002, requesting the Italian banks, by virtue of Article 1, to repay the State aid, specifying that, in the absence of repayment, the Ministry of Finance would apply coercive enforcement. Italian authorities then favoured a system according to whichPage 08 recovery was enforced only at a second stage and using ordinary means of enforcement provided for by the Italian Code for Civil Procedure; and
- State Aid 1999/C27 (ex-NN 69/98) was granted by law in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding and was declared incompatible with the Common Market by Commission Decision No. 2003/193/EC of 5 June 2002. The Italian parliament adopted Law No. 62 on 18 April 2005. Article 27 of this law required the beneficiaries to repay the State aid and clarified that recovery of the tax exemptions shall be executed, with certain exceptions, by means of ordinary procedures for tax assessment and collection, whereas recovery of the State aid granted through subsidised loans is to be ordered by the Ministry of Finance ("Ministero dell'Economia e delle Finanze").
Other public law measures adopted by the Italian authorities in order to implement negative Commission decisions have been the following.
* Coercive measures:
- State Aid 1998/C49 concerning State aid granted to promote employment was declared incompatible with the Common Market by Commission Decision No. 2000/128 of 11 May 199984. Approximately 350,000 undertakings were potential beneficiaries. The Italian authorities ("INPS", "Istituto Nazionale della Previdenza Sociale") informed the beneficiaries that the State aid must be repaid. In the absence of voluntary repayment, the Italian authorities are expected to apply coercive measures;
- State Aid 1997/C81 relating to certain provisions of Law No. 30/1997 and Law No. 206/1995, granting benefits on welfare contributions to undertakings active in the territories of Venezia and Chioggia, was declared incompatible with the Common Market by Commission Decision No. 2000/394 of 25 November 1999. Approximately 500 undertakings were potential beneficiaries. The Italian authorities applied coercive measures to recover the State aid. Almost 50% of the beneficiaries appealed the notice of payment and obtained the suspension of the national proceedings on the grounds that an action for annulment was pending before the CFI against the decision of the Commission (see section 7.2.2 below). The Italian authorities are expected to commence an expropriation procedure against the undertakings which did not appeal against the notice of payment;
It is worth noting that the CFI85 rejected a number of actions for lack of interest on the part of the claimants. In particular, the CFI noted that claimants from whom the Italian governmentPage 609 had decided not to recover the State aid did not have legal standing to bring an action under Article 230 EC, since these claimants did not have an actual interest in the annulment of the Commission's decision. The CFI further stated that (i) given the lack of legal standing before the CFI, the Commission's decision was not binding on the national courts in their evaluation of the case; and (ii) claimants would still enjoy the right to appeal to the national courts -which, in turn, would be entitled to make a preliminary reference in respect of this matter to the ECJ for a preliminary ruling -against national measures ordering recovery of the State aid; and
- State Aid 1997/C27 relating to certain provisions of Law No. 549 of 28 December 1995 on the Rationalisation of Public Finances, which provided for investment aid in the form of tax exemptions for reinvested profits, was declared incompatible with the Common Market by Commission Decision No. 2000/2248 of 12 July 2000. Only two undertakings received such tax relief. Whereas recovery from one of these companies was executed without having to apply coercive measures, coercive measures were used against the second company, which was subsequently declared bankrupt. The recovery claim was therefore registered to be included in the insolvency procedure.
* Formal communications to beneficiaries:
- State Aid 2003/C4 relating to loans granted to a company at a preferential rate was declared incompatible with the Common Market by Commission Decision No. 2004/1812 of 19 May 2004. Repayment was requested from the company by the Italian Ministry of Productive Activities ("Ministero delle Attività Produttive"). Pending the action for annulment before the CFI86, a sum equal to the State aid plus applicable interest was paid into a blocked account;
- State Aid 1997/C14 relating to loans granted at a preferential rate that were declared incompatible with the Common Market by Commission Decision No. 1999/195 of 1 July 1998. The recovery action was brought according to national insolvency procedures, since the two beneficiary companies were subsequently declared insolvent.
* Notices:
- State Aid 2003/C22 (ex NN 168/02) relating to loans granted to training institutes at a preferential rate under Ministerial Decree No. 173/2001, was declared incompatible with the Common Market by Commission Decision No. 2005/429 of 3 March 2005. The Ministry of Labour and Social Politics ("Ministero del Lavoro e delle Politiche Sociali") sent a circular to all regions and autonomous provinces, delegating the task of adopting all necessary measures to recover the State aid.
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No published case law has been found in this regard. In principle, should a company refuse to refund sums provided to it as State aid, the State may (i) seek a payment order ("decreto ingiuntivo"); or, alternatively, (ii) bring ordinary proceedings in the competent civil court.
A procedure for a payment order allows the State to obtain, from the court, a payment order that can be enforced against the beneficiary (i.e. the defendant). This remedy is available only in relation to claims for payment of undisputed sums of money when performance of the obligation is overdue.
In order to obtain a payment order, the State can lodge an ex parte action, stating the exact amount claimed and providing the competent court with written evidence supporting the claim, pursuant to Article 633 of the Italian Code of Civil Procedure. Moreover, pursuant to Article 635 of the Italian Code of Civil Procedure, the Administration's mandatory books or registers, duly completed and signed by an authorised officer or a notary public, could be used as written evidence supporting the State's claim.
Both the order and the application must be served on the defendant. Service of the application marks the start of the proceedings. Having served the order, the defendant may oppose the order during the period set out in Article 641 of the Italian Code of Civil Procedure concerning voluntary compliance (i.e. usually 40 days). In principle, the order is not enforceable without further authorisation from the court, which is usually given on application by the claimant when the period for opposing the order has expired. However, on application by the claimant, the order may be made enforceable on an interim basis where the debt is based on a bill of exchange, a banker's draft, a cheque, a certificate of stock market liquidation (in cases where a stockbroker has become insolvent) or an instrument acknowledged before a notary public or other authorised public officer (Article 642 (1) of the Italian Code of Civil Procedure). The competent court may also make the order enforceable on an interim basis if delay would give rise to a risk of serious harm to the claimant (Article 642 (2) of the Italian Code of Civil Procedure).
If the beneficiary opposes the payment order within the prescribed time limit, the ordinary inter partes civil procedure will be followed (Article 645 of the Italian Code of Civil Procedure), in which case the claimant will be able to satisfy its claim only if and when a favourable judgment is obtained in the main proceedings.
If the order is not opposed, enforcement proceedings could be commenced approximately two to three months from the filing of the initial application. Where the action is unopposed, the competent court will declare the order enforceable, simply on application by the claimant.
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Should the court refuse to grant a payment order, considering that the application discloses no reasonable cause of action, the State may bring an ordinary action against the beneficiary. Pending the ordinary proceedings, the claimant could request the judge to grant a payment order (i) relating to any undisputed sums -pursuant to Article 186 bis of the Italian Code of Civil Procedure; or (ii) when the requirements set out in Article 633 of the Italian Code of Civil Procedure are met -pursuant to Article 186 ter of the Italian Code of Civil Procedure.
In principle, where State aid has been granted by contract, the action brought by the State could be based on the alleged nullity of the contract. Under Article 1418 of the Italian Civil Code, a contract is void when it breaches mandatory rules, unless Italian law provides otherwise. In this respect, pursuant to Italian doctrine and case law, mandatory rules are those aiming to protect a public interest, which therefore cannot be amended by means of an agreement.
A void contract is totally ineffective as of the date it is entered into by the parties. Therefore, contractual performances carried out pursuant to it must be "returned" in order to restore the situation existing before its execution. In particular, a party that made an "undue payment" is entitled to restitution of the sums paid (plus interest thereon). Italian case law has specified that any payments made pursuant to an agreement that is subsequently found to be contrary to mandatory rules (and therefore, null and void) must be considered as "undue".87
Italian law also provides for an action for unjust enrichment ("arricchimento senza causa"). Such an action may be brought if the following three conditions are met: (i) enrichment of an individual or entity to the detriment of another; (ii) the enrichment cannot be justified; and (c) no other action can be exercised by the injured party in order to obtain compensation for the damage sustained.
No published case law has been found in this regard.
Article 669 bis and following of the Italian Code of Civil Procedure provide for a common set of rules regarding interim measures.
One of the main interim measures set out in the Italian Code of Civil Procedure, which could be used by national authorities for recovery purposes, is seizure of property ("sequestro"). Seizure may be sought when it is necessary to freeze assets in respect of which title is controversial and/or which guarantee the satisfaction of a debt.
The use of interim measures is subject to two essential conditions:
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(i) there must be a risk of "imminent danger" in respect of the contested right ("periculum in mora"); and
(ii) there must be a prima facie case ("fumus boni iuris").
An application for an interim measure can be made before the competent court either before or after ordinary proceedings have been commenced.
In particular:
-
where ordinary proceedings are not pending, the application must be filed with the court competent to conduct a hearing on the merits. A "pre-judgment" application of this type may be sought ex parte if a hearing before a judge in the presence of the other party could jeopardise the effectiveness of the remedy sought. However, in ex parte applications, the other party is entitled to submit pleadings and can be heard by the court after the date of the issue of the order. After the hearing, the court may confirm, modify or revoke the order;
-
where ordinary proceedings are already pending, the application must be filed with the court in charge of the specific case.
Due to the provisional/interim nature of these judicial remedies, which are based only on a summary examination of the contested right, the following rules apply:
* the measure must be enforced by the claimant within 30 days of being granted; and
* within that time limit, ordinary proceedings for a full assessment of the right must be commenced.
Therefore, these remedies are only temporary and their effectiveness will ultimately depend on the outcome of the proceedings on the merits of the case.
The decision to reject an application for a preventive measure or to grant it may be challenged before a panel of three judges of the same court.
Interim proceedings are concluded in a rather short period of time. The first phase of the proceedings usually lasts between 30 to 60 days while the appeal phase tends to add a further 30 days.
No published case law has been found in this regard.
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In a number of cases, beneficiaries have successfully requested suspension of the national proceedings aimed at recovering the State aid on the grounds that an action for annulment was pending before the CFI against the decision of the Commission.
In particular:
- State Aid 1997/C14 mentioned at section 7.1.2 (a) above: an action was brought by the competent Sicilian authorities before the Court of First Instance of Palermo, as a consequence of the refusal of the beneficiary to recognise the debt owed to the said authorities. The Court of First Instance of Palermo upheld the request of the beneficiary to suspend the proceedings until the CFI had decided the action for annulment against the Commission's decision declaring the aid incompatible with the Common Market;
- State Aid 1997/C81 (see section 7.1.2 (a) above) relating to certain provisions of Law No. 30/1997 and Law No. 206/1995, which granted benefits on welfare contributions to undertakings active in the territories of Venezia and Chioggia, was declared incompatible with the Common Market by Commission Decision No. 2000/394 of 25 November 1999. Approximately 500 undertakings were potential beneficiaries. The Italian authorities applied coercive measures. 251 out of the 517 beneficiaries lodged actions before the competent court, asking for the suspension of the execution procedure until the CFI had decided the action for annulment against the Commission decision. The competent court upheld all requests. As anticipated in section 7.1.2 (a) above, the CFI declared a number of appeals inadmissible for lack of interest, but emphasised that there was a possibility for the parties to carry on pursuing legal proceedings in the national courts.
No published case law exists with specific regard to recovery actions. In more general terms, as anticipated in section 2.2.3.1 above, the Italian courts have not upheld claims brought by potential beneficiaries contesting the legality of a decision refusing to grant State aid on the grounds that they had concluded civil contracts in the legitimate expectation of receiving the aid.
In this regard, it is worth noting that the ECJ in Italy v Commission88, pointed out that (i) a recipient of unlawful State aid is not precluded from relying on exceptional circumstances that could justify its legitimate assumption that the State aid is lawful and thus declining to refund the State aid; and (ii) if such a case is brought before a national court, it is the duty ofPage 614 that court to assess the material circumstances, if necessary after obtaining a preliminary ruling on their interpretation from the ECJ89.
No published case law has been found in this regard. There is no general provision under Italian law granting preferential status to public authorities for the recovery of unlawfully granted State aid.
Under Italian law, privileges may be granted to creditors according to the source of their claims. A case-by-case analysis must be carried out in order to verify whether the State aid (and thus the action to recover it) benefits from preferential treatment.
In principle, it could be argued that preferential treatment should apply if the State aid consisted in a reduction in tax charges. Indeed, according to Article 2758 of the Italian Civil Code, the State's claims to recover indirect taxes are privileged above any other claims regarding the assets to which the taxes relate and other items specified by the relevant laws. In addition, claims against the transferee or customer under the rules relating to VAT are granted the same privileges in respect of the assets that were the object of the transfers or to which the services relate.
In relation to income tax, Article 2759 of the Italian Civil Code provides that the State's claims relating to movable assets used in the course of the businesses' activities and goods located on business premises or in the business person's home enjoy preferential treatment.
In addition, pursuant to Article 2752 of the Italian Civil Code, the State's income tax claims (as distinct from taxes on income from real property) have priority over the debtors' movable assets, if these taxes have been entered into the enforcement proceedings' rolls, the collection of which was commenced during the year in which the relevant execution proceedings are being conducted and during the preceding year.
The State's claims to recover taxes on income from real property have priority over all real property located in the municipal area where the tax is to be collected (Article 2771 of the Italian Civil Code), whereas claims of the State to recover indirect taxes enjoy priority over the real property to which the taxes relate (Article 2772 of the Italian Civil Code).
With regard to recovery issues in the context of insolvency proceedings, the decision of the CFI in Keller90 should be recalled: by upholding the Commission's decision, the CFI implicitly affirmed the duty of the State to recover State aid even if the beneficiary is the subject of insolvency proceedings.
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According to general principles of Italian insolvency law, the principle of equal treatment of creditors ("par condicio creditorum") applies after the commencement of an insolvency or other special administration procedure. This means that the debtors' creditors are prevented from initiating or continuing individual judicial proceedings and/or claiming enforcement measures against the insolvent party or in relation to its assets. Instead, the creditors participate in the common pool of assets of the debtor in proportion to the size and priority of their allowed claims.
In particular, Article 53 of Decree No. 270/1999 (on establishing liabilities in special administration proceedings) and Article 103 of Royal Decree No. 267/1942 (regulating claims for recovery, restitution and the separation of moveable assets in bankruptcy proceedings) state that the creditor shall file a petition with the court in order to recover any amounts due by the insolvent party.
The court (in the course of one or more hearings) shall examine all claims by creditors seeking to recover their receivables or their own movable assets in possession of the insolvent party. After this examination, the court issues a decree to decide the claims brought before it and to define the debtor's liabilities.
No published case law has been found in this regard.
In principle, it could be argued that the State could initiate ordinary proceedings against the purchasers of businesses that benefited from State aid.
Different rules apply in case of universal or particular succession. Universal succession occurs when a company ceases to exist following a merger or a spin-off and is replaced by a new company. Conversely, particular succession takes place in case of a business transfer.
Should the transfer of all the beneficiary's rights and obligations be executed by universal succession, then the acquirer will be held liable for any of the transferor's obligations arising prior to the transfer, as all rights and liabilities of a predecessor entity ceasing to exist are transferred to the successor entity by operation of law.
On the other hand, in the event of particular succession the transferee will only be bound by the transferor's liabilities relating to the transferred activities.
If the relationship between the beneficiary and the third party qualifies as a transfer of a going concern, the relevant provisions contained in the Italian Civil Code apply91. In thisPage 616 regard, Article 256092of the Italian Civil Code states that the purchaser is jointly and severally liable only for debts reported in the mandatory accounting books93. In this respect, it must be noted that relevant case law does not hold the purchaser liable for unreported debts, even if the transferee was aware of such debts from a different source94.
Italian case law (especially employment case law)95 states that the rules on transfers of businesses should not apply when the business is transferred pursuant to a share deal. In such cases, the company involved continues to exist as a separate legal entity, and is therefore still the owner of the assets and the relationships relating to the business. It could therefore be argued that, despite there being a change of control of the company involved in the share deal, that company could continue to be liable for its obligations.
In Case C-328/99 Italy v Commission96, concerning a number of measures granted by the Italian authorities, the ECJ dealt with the recovery of unlawful aid from Multimedia, a company originally controlled by Seleco (i.e. the recipient of aid) and then sold to third parties. The ECJ annulled the Commission decision because the Commission's statement of reasons was inadequate and failed to prove that the measure resulted in an advantage for the addressee of the measure. However, the court upheld the Commission's statement that "as in any other recovery procedure, the Member State must, like any other diligent creditor, exhaust all the legal instruments available under its own legal system, such as those used to combat fraud against creditors in the form of acts carried out by the firm in liquidation during the suspect period prior to the bankruptcy, which would allow such acts to be declared invalid" (para. 69) in principle, and that "in order to prevent the effectiveness of the decision to recover the aid from being frustrated and the market from continuing to be distorted, the Commission may be compelled to require that the recovery is not restricted to the original firm but is extended to the firm which continues the activity of the original firm, using the transferred means of production, in cases where certain elements of the transfer point to economic continuity between the two firms" (para. 78).
No relevant published case law has been found.
An examination of the measures adopted by Italian public authorities in order to enforce negative Commission decisions and/or to recover illegal State aid shows that recourse to litigation is negligible before both administrative and civil courts. To the best of ourPage 617 knowledge, based on an examination of published case law, no actions before civil courts have been brought by the State or other public authorities in order to recover illegal and/or unlawful State aid. Recovery issues in proceedings in the administrative courts are also marginal.
The main obstacles to immediate and effective recovery appear to be the following:
- absence of a specific legal basis for recovery actions; as clarified in section 7.1.1 above, Italian public authorities enjoy significant discretion when deciding which type of public law measure they should adopt to recover the unlawful State aid;
- length of proceedings in both administrative and civil courts, for example, the following proceedings:
Case Acciaierie Ferriere Lombarde Falck S.p.A. v Ministero dell'industria, del commercio e dell'artigianato and others (see section 7.7.3.6 was commenced in 1986 in the Regional Administrative Court of Lazio). It took eight years to obtain a decision from the Regional Administrative Court of Lazio and a further eight years for the Administrative Supreme Court to render its final decision.
In Ministero delle Finanze v Torrefazione Caffè Mattioni S.r.l. (see section 7.7.3.32), the final judgment of the Supreme Court was obtained eight years after the commencement of the proceedings and, in addition, the case was before the tax authorities for four years and before the Supreme Court for four years.
- failure to enforce the Commission's decision pending an appeal before the Community courts. In a number of cases (see section 7.2.2 above), national courts upheld the beneficiaries' request to stay the proceedings pending an action for annulment before the CFI against the underlying Commission decision;
- the Commission's inability to actively intervene in national proceedings; Commission intervention in national proceedings would, for example, help to avoid having to adjourn proceedings unnecessarily. The Commission's knowledge of the merits of the case would also help the court to focus only on the specific issues relevant to the case.
- difficulties in identifying all beneficiaries when dealing with a State aid regime and in quantifying the sums to be repaid by each beneficiary;
- the Italian authorities' recourse to legislative measures ordering repayment of the State aid.
Strict coordination between the national authorities and the Commission is also advisable in order to facilitate the tasks of the national authorities, especially with regard to the handling of complex recovery cases. A good example of cooperation on the administrative level inPage 618 complex circumstances is Case 1998/C49 (see section 7.1.2 (a) above), involving a large high number of beneficiaries, so that significant efforts needed to be made to quantify the sums to be recovered by each beneficiary.
Giving the Commission the possibility to actively take part in judicial recovery proceedings also appears to be a means which would significantly assist in overcoming most of the above obstacles.
It is impracticable to provide a comprehensive set of best recovery practices as a benchmark for assessing Italy's recovery practice in the absence of ad hoc national legislation regulating the procedure for the recovery of illegal and/or unlawful State aid and considering the variety of instruments used to date by the Italian authorities for recovery purposes. A general set of best recovery practices is however provided in the following section. In principle, situations where (i) State aid is granted through an administrative act must be distinguished from situations where (ii) the State aid is granted in the context of a civil law transaction.
In light of the general background information provided in section 7.1.2 above, the following steps could be taken in order to recover illegal/unlawful State aid:
1) Formal payment request; this is the necessary legal act on the basis of which the State asks for reimbursement of the aid. If beneficiaries do not repay the aid, the State can bring proceedings against the beneficiaries;
2) Court action against the beneficiaries; the proceedings can take different forms depending on the facts and the requests made by the State. In order to recover the aid the State could:
2.1) request a payment order; as explained in section 7.1.3 (a) above, the State could obtain a payment order from the competent civil court which would be enforceable against the beneficiary;
2.2) request interim measures; as explained in section 7.1.4 above, interim measures could be granted by a civil court there is a risk of "imminent danger" in respect of the contested right ("periculum in mora") and if there is a prima facie case ("fumus boni iuris").
2.3) bring ordinary proceedings; after or independently of the adoption of interim measures, the State could commence proceedings in the competent civil court to obtain a court judgment assessing the right of the State to recover the aid. In that case, the judgment of the court of first instance could be appealed to the competent court of appeal and that judgment to the Supreme Court ("Corte di Cassazione").
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2.4) bring enforcement proceedings; a final judgment obtained in ordinary proceeding or a final order in Procedimento di Ingiunzione would empower the State to levy execution against the beneficiary's assets according to the procedure set out in Articles 483-604 of the Italian Code of Civil Procedure.
Should the aid be granted by an administrative act, the following steps could be taken in order to recover illegal/unlawful State aid:
1) adoption of a measure similar to the measure granting the aid. Also, the act ordering recovery would be an administrative act which, as a matter of law, may be challenged by the beneficiaries in the administrative courts (see section 7.1.1).
Except where the beneficiary obtains an annulment (or a suspension of the effect of) of the administrative act adopted under 1) above, the State could have recourse to the same procedures already described in section 7.6.1 above, i.e.:
2) Formal payment request;
3) Court action against the beneficiaries:
3.1) Requesting a payment order ("Procedimento di ingiunzione");
3.2) Requesting interim measures;
3.3) Commencement of ordinary proceedings; and
3.4) Commencement of enforcement Proceedings.
No published case law has been found in this regard.
No published case law has been found in this regard.
The Administrative Supreme Court recalled its previous case law (i.e. Judgment No. 465 of 29 January 2002), confirming that Commission decisions declaring State aid incompatiblePage 620 with the Common Market are directly applicable and that all subsequent national measures must therefore comply with them.
Facts and legal issues: the Ministry of Industry failed to implement an aid scheme for the benefit of the steel industry established by Law No. 183/1976 and the Decree of the President of the Republic No. 902/1976 since the aid scheme was incompatible with the Community rules concerning aid to the steel industry established by Commission Decisions No. 2320/81/ECSC of 7 August 1981 and No. 3484/85/ECSC of 27 November 1985. Società Siderurgica Lucchini appealed to the Regional Administrative Court of Lazio ("Tribunale Amministrativo Regionale del Lazio") that upheld its request to be granted the aid. The Ministry of Industry appealed to the Administrative Supreme Court.
Decision: the Administrative Supreme Court upheld the appeal brought by the Ministry of Industry and quashed the decision of the Regional Administrative Court of Lazio. The Administrative Supreme Court stated that, since Commission decisions declaring State aid incompatible with the Common Market are directly applicable, national authorities must comply with them. National legislation that is incompatible with a Commission decision cannot be enforced, even if it has not yet been abrogated and is therefore still in force. In addition, allowing a company to benefit from the aid would be in breach of the recovery obligation imposed on Member States. The Administrative Supreme Court also specified that the only way to appeal Commission decisions is to bring an action for annulment before the ECJ under Article 230 EC, or, at most, to request a preliminary ruling under Article 234 EC.
The Administrative Supreme Court upheld an appeal against a judgment of the Regional Administrative Court of Lazio ("Tribunale Amministrativo Regionale del Lazio") according to which the Ministry of Industry, Trade and Craftsmanship ("Ministero dell'Industria, del Commercio e dell'Artigianato") had unlawfully suspended a procedure granting aid provided for by Italian law on the grounds of ECSC decisions declaring such aid incompatible with the Common Market.
Facts and legal issues: the Ministry of Industry, Commerce and Craftsmanship failed to implement an aid scheme provided for by an Italian law in favour of Società Industrie Cantieri Metallurgici Italiani S.p.A., a company. The aid at issue had been declared incompatible with the Common Market by the Commission. However, the Italian law providing for the aid was not officially repealed. The company successfully appealed to the Regional Administrative Court of Lazio claiming that the Ministry was not competent to disregard an Italian law in order to enforce an ECSC decision.
Decision: the Administrative Supreme Court upheld the Ministry's appeal against the decision of the Regional Administrative Court of Lazio, affirming that, under Article 249 EC,Page 621 Commission decisions "shall be binding in [their] entirety upon those to whom [they are] addressed" and that these decisions are directly effective without having to be implemented by Italian legislation. This was confirmed, in the view of the Administrative Supreme Court, by the fact that the EC system provided for a beneficiary's right to appeal Commission decisions.
In December 2002, the Supreme Court ("Corte di Cassazione") rendered this groundbreaking judgment, in which it considered a number of issues concerning the relationship between EC law and national law. In its judgment, the Supreme Court expressly recognised for the first time that a negative Commission decision under Article 88 (2) EC had direct effect.
Facts and legal issues: Torrefazione Caffè Mattioni S.r.l. sued a local tax authority and the Italian Ministry of Finance in the Tax Court of Gorizia for the Court to officially uphold its right to certain tax benefits provided for by Law No. 26 of 29 January 1986. The request was upheld by both the competent local and regional tax court. The Italian Ministry of Finance and the local tax authority concerned appealed to the Supreme Court, alleging that the Commission had declared the aid granted pursuant to Law No. 26/1986 incompatible with the Common Market. On these grounds, the Supreme Court quashed the decision of the competent regional tax court.
Decision: the Supreme Court noted, first, that (i) the Italian government was under an obligation to enforce negative Commission decisions under Article 88 (2) EC by adopting all necessary measures to abrogate the legislative measures declared incompatible with the Common Market by the Commission; (ii) the national authorities, including judicial bodies, are bound by Commission decisions adopted under Article 88 (2) EC; and (iii) the decision of the Commission had become definitive given that it had not been challenged under Article 230 EC within the prescribed time limit.
The Supreme Court stated that, in the absence of measures by the Italian government to abrogate the legislative measure providing for the aid, which had been declared incompatible with the Common Market by the Commission, the decision of the Commission under Article 88 (2) EC had direct effect, since it was sufficiently clear and precise, unconditional, and did not give discretionary powers to the Italian government for its implementation. The Supreme Court also specified that (i) it is not necessary for the decision to be final to have direct effect, since, should the decision not be final and should a national court doubt its validity, that national court could refer this matter to the ECJ under Article 234 EC; and (ii) the compatibility of a measure with EC law may be assessed ex officio by the national courts.
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Facts and legal issues: by means of Decree No. 119 of 2 August 1995, the Ministry of Industry ("Ministero dell'Industria") admitted Diano S.p.A. ("Diano") to an investment program. By notice of 31 October 1995, the Ministry of Productive Activities ("Ministero delle Attività Produttive") rejected Diano's application for the State aid on the basis of Commission Decisions No. 2320/81/ECSC and No. 3484/85/ECSC. Diano appealed against the notice, alleging that the Ministry had failed to give reasons for rejecting its application and the Regional Administrative Court ("Tribunale Amministrativo Regionale") upheld the claim. The Ministry then appealed to the Administrative Supreme Court on the grounds that Diano failed to meet the requirements set out in the Commission decisions.
Decision: the Administrative Supreme Court upheld the Ministry's appeal and held that the aid could not be granted in the absence of specific authorisation from the Commission and that the notice from the Ministry of Productive Activities was therefore in compliance with Commission Decisions No. 2320/81/ECSC and No. 2484/85/ECSC, which were both directly applicable.
The Administrative Supreme Court dismissed an appeal brought against a judgment of the Regional Administrative Court of Abruzzo ("Tribunale Amministrativo Regionale dell'Abruzzo") upholding an act which refused to grant certain benefits provided for under a law in favour of investment plans that are to be implemented in Southern Italy, since the Commission had declared that law incompatible with EC State aid rules.
Facts and legal issues: the Ministry of Industry, Trade and Craftsmanship ("Ministero dell'Industria, del Commercio e dell'Artigianato") did not assign certain benefits to Del Verde S.p.A., a pasta manufacturer, in favour of investments in Southern Italy granted by Law No. 120/1987. Del Verde petitioned to the Administrative Court of Abruzzo asserting its legal right to receive the aid and claiming that, although the Commission had declared the aid incompatible with EC rules on State aid, a national entity could not disregard an Italian law on the basis of a decision by the Commission when that law was still in force.
Decision: the Administrative Supreme Court dismissed the appeal, expressly departing from its findings in its previous Judgment No. 30/1989 (see section 7.7.3.39 below). The Administrative Supreme Court noted that under Article 249 EC, Commission decisions "shall be binding in [their] entirety upon those to whom [they are] addressed" and that these decisions are directly applicable without having to be implemented by Italian legislation. This was confirmed, in the view of the Administrative Supreme Court, by the fact that the EC system provided for the beneficiary's right to appeal Commission decisions. Moreover, the Administrative Supreme Court emphasised that it was unnecessary to implement thePage 623 Commission decision. Finally, the Administrative Supreme Court noted that it would be inconsistent for a State to grant an aid that should be recovered under EC law.
In January 2002, the Administrative Supreme Court dismissed an appeal brought by Acciaierie Ferriere Lombarde Falck S.p.A. ("Falck") against the decision of the Regional Administrative Court of Lazio not to quash a notice, in part, from the Italian government addressed to the ECSC of 28 May 1985 ("the Notice") and the consequential denial of access to an aid scheme for steel industries.
Facts and legal issues: In Commission Decision No. 2320/81/ECSC of 7 August 1981 establishing Community rules for aid to the steel industry97 the ECSC laid down general rules for aid granted within the framework of restructuring programmes concerning the steel industry, requiring notification to the Commission of these programmes by the Member States. Pursuant to later decisions, 31 May 1985 was the ultimate notification deadline.
On 28 May 1985, the Italian government notified aid schemes it intended to implement to restructure the Italian steel industry. In doing so, it provided a relatively small aid package in favour of privately owned steel industries, including Falck. Later on, upon Falck's complaint, the Italian government notified an amended aid scheme that provided an increased aid package to privately owned steel industries on 22 July 1985. The ECSC dismissed the request since it was time-barred. The Italian State therefore denied to grant the increased aid.
Falck brought actions before the ECJ, which upheld the ECSC decision not to authorise the amended aid scheme, and the decision of the Regional Administrative Court of Lazio ("TAR Lazio") which had upheld the Ministry's decision not to grant the increased aid.
Decision: the judgment of the Regional Administrative Court of Lazio was appealed by Falck to the Administrative Supreme Court which upheld the judgment.
The Administrative Supreme Court stated that the exercise by the Italian government of its discretion to grant the aid depended on political choices and was not an act due by law. It was not possible, therefore, to claim that rights would be violated if the State failed to exercise this discretion or exercised it in an unsatisfactory manner. Hence, the State's denial to grant further aid could not be challenged before the Court.
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The Administrative Court of Lazio stated that national public authorities must comply with a Commission decision declaring an aid incompatible with the Common Market, even if that aid had been granted pursuant to a law that had not yet been repealed.
Facts and legal issues: Iris Biomedica appealed to the Administrative Court of Lazio against a decision of the Ministry of Industry in which it denied to grant aid provided for under Article 6 of Law Decree No. 8 of 26 January 1987, which later became Law No. 120 of 27 March 1987, to Iris Biomedica. The Ministry's refusal was based on the grounds that such aid had been declared incompatible with the Common Market by the Commission and the ECJ.
Decision: the Administrative Court of Lazio rejected the claim. It pointed out that the Ministry had correctly refused to grant the aid and to apply Article 6 of Law Decree No. 8/1997. The Administrative Court of Lazio stated that, although the legislative measure granting the aid was still in force, the Ministry was bound by the negative Commission Decision No. 91/175/EEC of 25 July 1990, upheld by the ECJ98, due to the direct effect of negative Commission decisions.
The Court of First Instance of Cagliari declared Nuova Cartiera di Arbatax S.p.A. ("NCA") insolvent and ordered that its decision be notified to the Ministry of Industry and Commerce for the Ministry to take subsequent measures.
NCA filed a petition with the Court of First Instance of Cagliari to be admitted to the special administration regime established by Law No. 95/1979 ("Prodi law"). The request was based, inter alia, on the assumption that NCA was required to repay ITL 67.529 billion received as State aid after the Commission had declared the aid illegal by decision of 27 November 1991. Since NCA's capital amounted to ITL 100 billion, the amount due represented more than 51% of its capital (i.e. compliance with the percentage set by the Prodi law as one of the conditions for admission to the special administration procedure). The Court of First Instance of Cagliari upheld NCA's request to be admitted to the special administration regime.
The Administrative Court of Lazio dismissed the claimant's petition concerning the right to receive State aid notwithstanding a Commission decision declaring such State aid incompatible with Article 92 EC.
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Facts and legal issues: the Ministry of Industry ("Ministero dell'Industria") refused to grant Società Fondiaria A. ("SFA") a reimbursement relating to electricity costs pursuant to Law No. 627/1981, which had been declared incompatible with the Common Market by the Commission in its Decision No. 396/1983. SFA then petitioned to the Regional Administrative Court of Lazio asserting its legal right to receive the reimbursement.
Decision: the Regional Administrative Court of Lazio dismissed SFA's petition. It declared that the Administration could set aside an internal act that was in conflict with a Commission decision, notwithstanding the existence of conflicting internal regulations that had not yet been repealed. An individual could benefit from a State aid only if this had been authorised by the Commission. In the absence of authorisation, SFA's claim for reimbursement could not be upheld99.
In January 1989, the Administrative Supreme Court upheld an appeal brought by Coop. Carettieri la Rinascita against the decision of the Ministry of Transport ("Ministero dei Trasporti") to repeal two previous notices ("the Notices") implementing Law No. 815 of 27 November 1980 ("the Law") introducing an aid scheme (i.e. subsidised loans) for the period 1980-1983 in favour of hauling companies.
Facts and legal issues: Under Law No. 815, the Italian State provided for a subsidised loans programme for hauling companies. Law No. 815 was implemented by the Ministry of Transport by issuing the Notices. On the legal basis of the notices, Coop. Carettieri la Rinascita was granted subsidised loans.
On 20 July 1983, the Commission decided that the subsidised loans programme introduced by Law No 815 qualified as State aid and should have been notified to it prior to implementation. The Commission, having also noted that the subsidised loans scheme was capable of distorting competition and thus infringed Article 92 (1) EC, ordered Italy to repeal the aid scheme within three months.
Further to the Commission's decision, the Ministry of Transport annulled the Notices by means of a further notice of 23 February 1984. The appellant appealed to the Regional Administrative Court of Lazio ("TAR Lazio") claiming that the Ministry of Transport was not entitled to depart from Law No. 815, which provided for the subsidised loans that had been declared unlawful by the Commission.
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On the grounds of the principle of the supremacy of Community law over national law, the Regional Administrative Court of Lazio dismissed the appeal. The appellant therefore appealed the decision of the Regional Administrative Court of Lazio to the Administrative Supreme Court.
Decision: the Administrative Supreme Court upheld the appeal and quashed the judgment of the Regional Administrative Court of Lazio.
The Administrative Supreme Court specified that Commission decisions on State aids are not directly applicable. The Commission decision was addressed to the Republic of Italy and provided for, impliedly, the abrogation of the Law. The Ministry could not, prior to the abrogation of the Law, retrospectively annul its Notices, whereby it would comply with the Commission decision but infringe the Law.
As anticipated in Part I, in its more recent case law (for example, Judgments No. 465/2002 and No. 5250/2003, respectively under sections 3.3.7 and 3.3.2) the Administrative Supreme Court departed from the principle in this decision and expressly recognised the direct effect of Commission decisions.
The Administrative Court of Lazio correctly stated that national public authorities (i) must comply with a Commission decision declaring an aid incompatible with the Common Market; and (ii) correctly sought to recover an unlawful aid, notwithstanding the fact that the aid had been granted pursuant to a law that had not yet been repealed.
Facts and legal issues: Cassa Conguaglio per il Settore Elettrico ("Cassa") refused to grant TERNI -Soc. Per l'Industria e l'Elettricità S.p.A. ("Terni") a reimbursement relating to the consumption of electric energy, as provided for by a ministerial decree of 26 January 1982 and Law No. 617 of 4 November 1981, which converted Law Decree of 4 September 1981, No. 495. Cassa also asked Terni to repay any reimbursements previously granted to it. Cassa observed that ECSC Decision No. 87/396 of 29 June 1983 clarified that (i) the reimbursements amounted to State aid; and (ii) only reimbursements granted to privately owned companies could be considered compatible with the Common Market. Terni appealed Cassa's decision to the Administrative Court of Lazio.
Decision: the Administrative Court of Lazio rejected the claim. It pointed out that, first, Terni must be considered as a public undertaking for the purposes of this case and recalled ECSC Decision No. 2320 of the Commission of 7 May 1981 establishing Community rules for aids to the steel industry and ECSC Decision No. 87/396 of 29 June 1983. It stated that Cassa had correctly asked for the repayment of the aid unlawfully granted, specifying that publicPage 627 authorites were bound by negative Commission decisions although the aid had been granted pursuant to a national legislative measure which was still in force.
The Administrative Court of Sicily dismissed the appeal brought by Società Enosicilia ("SE") and Consorzio Produttori Vini Siciliani Cooperativa ("CPVSC"), requesting annulment of an administrative order issued by the Istituto Regionale Vite e Vino ("IRVV") withdrawing a regional aid for wine producers.
Facts and legal issues: both SE and CPVSC were producers and marketers of wine. IRVV was a regional administrative body responsible for the wine industry in Sicily and the Assessore Agricoltura e Foreste Regione Siciliana ("AAFRS") was a member of the Sicilian Regional Assembly for forestry and agriculture. In 1973, the Region of Sicily enacted Regional Law No. 28/1973, granting financial aid to IRVV for the marketing of Sicilian wine in Italy and abroad. However, in June 1982, the Commission delivered a reasoned opinion pursuant to Article 169 EEC (now Article 226 EC) stating that the Italian government had infringed Regulation No. 816/70 as amended, and inviting Italy to comply with the provisions of such opinion.
As a result, the Region of Sicily enacted Regional Law No. 58/1983, repealing Regional Law No. 28/1973 and limiting the amount of economic aid. IRVV then issued Regional Decree No. 3210/1983 ("Circolare No. 3210/1983") declaring that it had ceased to pay out the aid already approved for the years 1982 and 1983 to promote the wine sector. AAFRS then sent a facsimile to IRVV requesting immediate suspension of any aid to CPVSC.
SE and CPVSC appealed to the Administrative Court of Sicily asking for:
(i) the annulment of IRVV's Regional Decree;
(ii) the annulment of AAFRS's facsimile request; and
(iii) payment of aid for the years preceding the enactment of Law No. 58/1983 on the basis of the rule tempus regit actum rule.
Decision: the Administrative Court of Sicily dismissed the appeal. In particular, the Administrative Court of Sicily held that both IRVV 's Regional Decree and AAFRS's facsimile request were valid.
In addition, the Administrative Court of Sicily concluded that SE and CPVSC were not entitled to State aid for the years preceding the enactment of Law No. 58/1983 (with particular reference to aid for 1982 that had yet to be paid), as it was in breach of Regulation No. 337/1979 regulating the European wine industry.
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The Administrative Court of Lazio dismissed the action filed by Societa Cooperativa Trasporto Latte ("SCTL"), a milk transporting company requesting the annulment of a ministerial decree enacted by the Ministry of Transport ("the Decree"). By means of the Decree, two previous ministerial decrees enacted in 1981 granting aid were revoked. Banca Nazionale del Lavoro ("BNL") was the bank that had granted loans to SCTL and the other appellants.
Facts and legal issues: In 1981, the Ministry of Transport enacted two decrees in order to implement Law No. 815/1980, granting aid to companies for the purchase of vehicles. The aid was granted by means of government-assisted loans. However, the Commission found that Law No. 815/1980 was incompatible with the Common Market. Therefore, the Ministry of Transport repealed these two decrees and declared that SCTL and other companies were not entitled to the aid.
SCTL appealed to the Administrative Court of Lazio, requesting the annulment of the Decree according to which the aid had been withdrawn on the grounds that:
(i) having legitimately relied on the Decree, it had begun to renovate its fleet of vehicles and had therefore suffered a serious loss;
(ii) it had obtained significant bank loans which it intended to repay using the State's aid.
Decision: The Administrative Court of Lazio ruled that the Decree was lawful. Furthermore, the Administrative Court of Lazio stated that, if the Commission decided that aid was not compatible with the Common Market and requested annulment by the State within a given period of time, the Administration could decide to annul the relevant ministerial decree immediately, without having to commence a formal procedure to revoke the legislative instrument100.
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[84] This decision was upheld by the ECJ in Case C-310/99, Italy v Commission [2002] ECR I-2289 and Italy was sanctioned for not having adopted the recovery measures requested by the Commission (see Case C-99/02, Commission v Italian Republic [2004] ECR I-3353.
[85] Order of the CFI in joined Cases T-228/00, T-229/00, T-242/00, T-243/00, T-245/00 to T-248/00, T-250/00, T-252/00, T-256/00 to T-259/00, T-265/00, T-267/00, T-268/00, T-271/00, T-274/00 to T-276/00, T-281/00, T-287/00 and T-296/00 2005, Gruppo Ormeggiatori Porto di Venezia Soc. Coop. rl v Commission [2002] ECR I-4657.
[86] Case T-316/04, Wam SpA v Commission [2004] ECR I-345.
[87] See Supreme Court, Judgments No. 1252/00, No. 11973/95 and No. 11177/94.
[88] Case C-310/99, Italy v Commission [2002] ECR I-2289; see section 7.1.1.2 above and footnote.
[89] Case C-310/99, Italy v Commission [2002] ECR I-2289, para. 103.
[90] Case T-35/99, Keller SpA and Keller Meccanica SpA v Commission [2002] ECR II-261.
[91] See Supreme Court, Judgments No. 2819/90 and No. 176/81.
[92] Article 2560 of the Italian Civil Code: "Debt of a transferred business: The transferor is not released from debts incurred in the operation of a transferred business prior to the transfer, unless it is shown than the creditors consented to such release. In the transfer of a commercial business, the transferee is also liable for such debts, if they are shown in the mandatory accounting books".
[93] Supreme Court, Judgment No. 4367/98.
[94] See, inter alia, Supreme Court, Judgment No. 8363/00 and Tribunale of Genova, 15 April 1992.
[95] See Supreme Court, Judgments No. 4012/93 and No. 10068/94.
[96] Joined Cases C-328/99 and C-399/00, Italy and SIM 2 Multimedia v Commission [2003] ECR I-4035.
[97] OJ (1981) L 228/14.
[98] Case C-364/1990, Italian Republic v Commission [1993] ECR I-2097.
[99] For the appeal, see Administrative Supreme Court, Judgment No. 167 of 16 March 1992, Società Fondiaria Assicurazioni v. Cassa Conguaglio Settore Elettrico (on appeal to Administrative Court of Lazio, Sec. III, Decision No. 1071 of 11 June 1990 asking for a preliminary ruling from the ECJ). For similar conclusions, see also Administrative Supreme Court, Judgment No. 168 of 16 March 1992, Società Terni et a. v. Cassa Conguaglio Settore Elettrico; Administrative Supreme Court, Sec. Vl, Società Terni v. Società Italsider and Cassa Conguaglio Settore Elettrico. See also Administrative Supreme Court, Sec.: VI, Judgment No. 312 of 29 March 1995, Società Terni Spa et a. v. Cassa Conguaglio Settore Elettrico; Administrative Supreme Court; Sec. VI; Judgment No. 483 of 20 May 1995, Fonderia S.p.a. v. Cassa Conguaglio Settore Elettrico.
[100] On appeal, however, the Administrative Supreme Court expressed a slightly different opinion. According to the Administrative Supreme Court, the decisions taken by the Commission pursuant to Article 93 EC have the same effect as Community directives and, therefore, are not directly applicable. Consequently, when the Commission issues a decision requesting the annulment of State aid that is declared incompatible with the Common Market, the State must, first, modify its legislation and, then, repeal the administrative acts adopted to implement such legislation. See Administrative Supreme Court, Sec.: VI, Judgment of 2 December 1988, Società Cooperativa Trasporto Latte v. Ministry of Transportation. See also Administrative Supreme Court, Sec.: VI, Judgment of 24 January 1989, Cooperativa Carrettieri "La Rinascita" et alia v. Ministero dei Trasporti et a..
