C-99/92
ECLI:EU:C:1993:319
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TERNI AND ITALSIDER
OPINION OF MR ADVOCATE GENERAL GULMANN delivered on 15 July 1993 *
Mr President, granted within the framework of and under Members of the Court, the conditions laid down in Commission Decision No 2320/81 /ECSC establishing Community rules for aids to the steel indus 2 try. That decision provided inter alia that aid which the Member States proposed to 1. This Opinion covers two cases in which grant to the steel industry should be notified the Consiglio di Stato has referred questions to the Commission and that the proposed to the Court for a preliminary ruling. It is aid could only be implemented with the practical to deal with the cases in one and the Commission's authorization. same Opinion because they have a common background even though the legal issues raised in the cases are different.
4. In October 1981 the Italian Government 2. Both concern the interpretation of Com notified to the Commission its plans to grant mission Decision No 83/396/ECSC of 29 aid to the Finsider Group and Sisma (which June 1983 in which the Commission, under are subsidiaries of the Istituto per la certain conditions, authorized specific Italian Ricostruzione Industriale) and to all steel aid to steel-makers 1 and they both relate to producers over 50% of whose total annual the same authorized aid, namely a reduction consumption of electricity was accounted for of electricity prices for electric steel-makers. by the use of electric arc furnaces — so-called electric steel-makers. After lengthy negotiations, in which the Commission in particular required changes with regard to the aid to Finsider, the Commission adopted the above-mentioned 1983 decision. 3. The cases arise from the exacerbation at the beginning of the 1980s of the crisis within the steel sector. Restructuring was necessary and the need for aid was thus accepted. Such aid could, however, only be
5. In Article 1 the Commission author * Original language: Danish. ized inter alia the said aid for reduction 1 — Decision 83/396/ECSC concerning the aids that the Italian Government proposes to grant to certain steel undertakings, OJ 1983 L 227. p. 24. The Court has jurisdiction to give preliminary rulings on the interpretation of ECSC measures, sec judgment in Case C-221/88 Bussan [1990] ECR I-495. 2 — OJ 1981 L 228. p. 14.
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OPINION OF MR GULMANN — CASES C-99/92 AND C-100/92
of electricity prices for electric steel companies did not satisfy that condition. makers. That interpretation of the Commission's decision is disputed by the two companies.
6. The aid consisted in the State defraying part of the costs incurred by electric steel The Consiglio di Stato requested the Court makers in paying a special surcharge on the to interpret the Commission's decision in basic electricity price — the sovrapprezzo order to resolve that dispute. termico — which was introduced to encour age energy savings and the efficient use of energy and decided periodically by the Interministerial Price Committee.
9. Article 1 of the decision provides:
7. The aid was implemented by Decree-law No 495 of 4 September 1981 on urgent mea sures in favour of the steel industry, Article 1 'The following aids which the Italian Gov of which, after amendment by Law No 617 ernment plans to grant to the Finsider of 4 November 1981, provided that under Group, Sisma and steel producers over 50% certain conditions aid to steel-makers could of whose annual consumption of electricity be granted, the aid consisting in the fact that is accounted for by the use of electric arc the exchequer would renounce the increases furnaces are compatible with the orderly in the electricity surcharge decided by the functioning of the common market to the Interministerial Price Committee after 31 extent that the conditions and requirements March 1981. set out in Articles 2 to 5 are satisfied:
Case C-99/92 1. Aids to Finsider:
8. The two Italian undertakings, Società Terni SpA and Italsider SpA, had, for a pre — Investment aid: ... [interest subsidies etc.] liminary period, obtained a share of the aid, but the aid was later required to be repaid by the authorities, who pointed out that it appeared from the Commission's 1983 authorization that the aid could be granted — Aid for continued operation: [interest only to private producers and the two subsidies etc.]
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TERNI AND ITALSIDER
— Aid for research and development up to undertakings within each of those categories LIT 57 000 million; ... and it must also be assumed that the separa tion also meant that the undertakings in question could not be granted aid other than that authorized for undertakings in the cat egory in question. That conclusion is sup 2. Aids to Sisma: ported by Point III in the preamble, which first sets out the aid to Finsider, then the aid to Sisma and lastly the aid for 'the private sector'. The Commission emphasized the particular circumstances which applied to — endowment of a fund: ... each of the three groups of undertakings and authorized the specific aid mentioned for each of them. Undertakings belonging to the Finsider Group — even if from the company law point of view they were set up as private 3. Aids to private steel producers: law companies — can thus not lay claim to 'defrayal by the exchequer of increases in the electricity surcharge' which was only autho rized for the third group of undertakings (producers in the private sector) . Moreover — defrayal by the exchequer of increases in in the preamble the Commission indicated the electricity surcharge (sovrapprezzo the significance to be ascribed to the fact that termico) decided by the Interministerial Finsider and Sisma were 'controlled' by the Price Committee between 31 March 1981 State, see Point IV in the preamble. and 31 December 1982 ...'
10. The first question referred to the Court is whether the undertakings Terni SpA and Italsider SpA are treated in the Commission decision as private or public producers in the light of their legal structure or the public holding of their capital and, thus, whether authority was granted in their case for the exchequer to defray the increases in the elec It is apparent that Terni SpA and Italsider tricity surcharge. SpA, at least at the time relevant to the main proceedings, were undertakings in the Finsider Group and the companies con firmed, moreover, that they obtained a share of the aid which the Commission authorized 11. It is clear that the separation in Article 1 for Finsider; I therefore consider there to be of aid recipients into three categories — no doubt but that Article 1 of the decision respectively the Finsider Group, Sisma and must be interpreted as meaning that the two private producers — was intended precisely companies cannot be treated as 'private pro to show which aid could be granted to ducers' within the meaning of the provision.
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OPINION OF MR GULMANN — CASES C-99/92 AND C-100/92
12. Since it can be deduced from the actual bition in Article 4 (b) of the ECSC Treaty by terms of the decision how the disputed pro adopting measures or practices which dis vision is to be interpreted, there is no reason criminate between producers. On the con to seek assistance from other provisions in trary, it appears from the preamble to the Community law where the distinction decision that the Commission had assessed between private and public undertakings is the aid requirements for each individual cat significant. egory of undertakings on the basis of the capacity reductions which were necessary in the light of restructuring.
13. The Consiglio di Stato posed a further question, asking the Court to rule whether Italsider SpA and Terni SpA 'were ..., being regarded by the said decision as public pro Case C-100/92 ducers but not taking any share of the vari ous aids authorized for Finsider and Sisma, exposed to unequal treatment by comparison with private producers regarding the defrayal by the State Treasury of the increases in the electricity surcharge'. 15. The undertaking Fonderia A. has, as a private producer, an indisputable right to the State aid authorized by the Commission which consisted in the State's defrayal of increases in the electricity surcharge. 14. The question assumes that Terni SpA and Italsider SpA are companies which ben efit neither from the aid authorized for Finsider and Sisma nor from the aid autho rized for private producers.
16. The undertaking's dispute with the Ital ian authorities relates solely to its entitle ment to that aid in the first half of 1983. It It follows from what has just been stated considers that it is so entitled on the basis of that that assumption is not correct. The two the clear wording of the Italian Law. The companies have obtained a share of the aid authorities refused to grant the aid for that granted to the Finsider Group. period on the ground that in its decision the Commission authorized grant of the aid solely to the end of 1982.
3 — In its judgment in Case 304/85 Falck v Commission [1987] Moreover, no evidence has been produced to ECR 871, the Court held that the Commission cannot indicate that in its authorization of the Ital 'approve aid the grant of which may result in manifest dis crimination between the public and private sectors' (para ian aid the Commission infringed the prohi graph 27).
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17. The question referred to the Court con That is borne out by the fact that Article 2 of cerns the interpretation of the Commission's the Ministerial Decree of 26 January 1982 decision for the purpose of resolving that laid down that the subsidy referred to in dispute. Article 1 of the Law '... is a subsidy ... in respect of the increases in the "sovrapprezzo termico" which [the Interministerial Com mittee] decided after 31 March 1981, which relate to energy consumption in the period from 6 September 1981 to 30 June 1983 ...'. 18. The provision which formed the basis for the grant of aid is worded as follows:
19. In its decision the Commission autho 'In the light of the special significance of rized the 'defrayal by the exchequer of energy costs for the Italian steel industry the increases in the electricity surcharge (sovrap exchequer shall, with effect from the date of prezzo termico) decided by the Interministe entry into force of that decree until 30 rial Price Committee between 31 March 1981 June 1983, defray the increases in the and 31 December 1982'. "sovrapprezzo termico" decided by the Interministerial Price Committee after 31 March 1981.'
In the Italian version, which is the only authentic text, the provision is worded: The provision thus lays down:
'Azzunzione a carico del Tesoro degli (1) that the aid consists in the fact that the aumenti del sovrapprezzo termico fissati dal State will defray the increases in the elec- comitato interministeriale dei prezzi, dal 31 tricity surcharge which the Intermi marzo 1981 sino al 31 dicembre 1982'. nisterial Committee decided after 31 March 1981; and
20. The Commission and the Italian Gov (2) that the aid is granted with regard to the ernment contend that that authorization undertakings' energy consumption in the means that the aid can only be granted period from 6 September 1981 (the date until 31 December 1982, and the Commis on which the aid commenced) until 30 sion states that it reflected a conscious posi June 1983. tion on the scope of the permissible aid.
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OPINION OF MR GULMANN — CASES C-99/92 AND C-100/92
21. It naturally makes an impression when to the clear wording of the Italian Law, can the author of the disputed provision and its be granted. addressee are in agreement over its interpre tation.
As stated, the Law specifically sets out the scope of application of the aid, first as regards its material content and secondly as regards its temporal application.
22. Against that, however, there is the fact that that interpretation implies a consider able limitation on the aid granted by the Ital ian legislature for the benefit of private undertakings — a limitation of six months in respect of an aid which is only to apply for On the first point it was laid down that the approximately 22 months — and that in such aid consisted only in the defrayal by the a situation it is at least reasonable to require State of increases in the electricity surcharge such a limitation to be expressed with clarity. which the Price Committee had decided after a certain date, in casu 31 March 1981, whereby it was made clear that the aid did not consist in a full defrayal of the surcharge.
23. It is also important for interpretation purposes that in the decision's comprehen Secondly, it was laid down that the aid was sive statement of reasons there is no sugges to be granted only for a limited period, in tion of a limitation on the Italian aid's tem casu from the entry into force of the rule in poral application. September 1981 until 30 June 1983.
4 — The Commission and the Italian Government have referred to the fact that in the disputed provision there is a comma before 'dal marzo 1981 sino al 31 dicembre 1982' and con tended that that comma shows that the said period is linked to the words 'increases in the electricity surcharge' and not to the words 'decided by the Interministerial Committee'. That argument cannot, in ray opinion, be accorded great sig nificance. On the one hand it seems dubious to me whether the position of a comma can support the interpretation claimed and, on the other hand, arguments supported by the placing of a comma can generally be accorded relatively lim 24. However, I find it most significant that, ited significance. Moreover, that the argument is dubious would seem to be borne out by the fact that the Consiglio di in my view, the provision can be naturally Stato, in its order for reference, found the said period, regardless of the comma, to be referred to incidentally in the understood only as containing no limitation provision, with no logical link to any of the foregoing of the period within which the aid, according phrases.
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The reference in the Commission decision to were not adopted for the first half of 1983, the period between 31 March 1981 and 31 so it is rational that the Commission, which December 1982 can reasonably relate only to adopted its decision on 29 June 1983, the period which is relevant as far as the par referred to the aid as consisting in the State's ticular aid being granted is concerned — defrayal of the price increase decided by the namely the price increases adopted in the Price Committee in the period between 31 period in question — not to the period March 1981 and 31 December 1982. within which the aid thus decided is granted.
25. In the light of the foregoing it must be The reference to the date of 31 March 1981 right to interpret the provision to the effect only makes sense if that interpretation is that the Commission authorized aid to be adopted. It was, moreover, explained in the paid until 30 June 1983, in accordance with course of the proceedings that price increases the Italian legislation.
Conclusion
26. In view of the above considerations I suggest that the Court should reply as fol lows:
in Case C-99/92:
(1) Article 1 of Commission Decision No 83 / 396 / ECSC should be interpreted as meaning that undertakings belonging to the Finsider Group may not be treated as 'private producers' covered by Article 1 (3).
(2) There is no evidence before the Court to suggest that the Commission decision involved unlawful discrimination between private and public undertakings .
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OPINION OF MR GULMANN — CASES C-99/92 AND C-100/92
In Case C-100/92:
Article 1 (3) of Commission Decision No 83/396/ECSC should be interpreted as meaning that the defrayal by the exchequer of increases in the electricity surcharge (sovrapprezzo termico) was also authorized with regard to the period from 1 Janu ary to 30 June 1983.
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