C-200/97

OPINION OF MR FENNELLY — CASE C-200/97

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 16 July 1998 *

4 Introduction institutions, or companies in which the State 5 owns a majority stake. It appears that extraor­ dinary administration is available only to com­ panies engaged in industrial activity. Further­ more, where a company is eligible for extraordinary administration under Law 1. This case raises the question whether a No 95/1979, other insolvent companies in the form of extraordinary administration and pro­ same group may also be placed under extraor­ tection from execution by creditors which is dinary administration even if they do not accorded to certain insolvent companies by comply with the criteria regarding the number Italian law constitutes, in the case of a steel of employees and their level of indebtedness. company, a State aid prohibited by Article 4(c) 1 of the ECSC Treaty.

I-7910

ECOTRADE v AFS

of a further two years). This decision is dis­ claims. A decree of extraordinary administra­ cretionary in nature, unlike, apparently, that tion, like the normal liquidation procedure, to place the company in extraordinary admin­ results in the suspension of the collection by istration in the first place; it has been sub­ individual creditors of debts owed by the mitted that the two decisions are invariably company, as well as the execution of any 9 taken together. When taking the decision on judicial remedies. In the case of extraordi­ continuation of trading, the Minister for nary administration, however, the suspension Industry must take full account of the inter­ extends to fiscal debts, penalties and interest, ests of the creditors. which are not subject to such a suspension in 10 the ordinary course. Interest on existing debts is suspended during the period of extraordinary administration, as under the 1 normal liquidation procedure. 1

I-7911

OPINION OF MR FENNELLY — CASE C-200/97

administrator appointed to run the company regarding whether the Minister's decisions are must then prepare an appropriate business subject to review limited to their legality by plan. The compatibility of the business plan the administrative courts, or are, on the con­ with the broad lines of national industrial trary, amenable to a more far-reaching action policy is determined by the interministerial before the civil courts regarding whether they 1 industrial policy committee 4before its are consistent with the economic interests of approval by the Minister for Industry. It the creditors. It appears that some creditors appears that the administrator may not pro­ may be represented on the supervisory com­ ceed to the liquidation of the company unless mittee, which has a purely consultative role in it is impossible to save it; liquidation should, the extraordinary administration procedure. where possible, take place through disposal as a going concern of the operational assets of the company. The Commission has suggested that the administrator has the facility to sell units of the company at negative prices, that is, that other undertakings would be paid to take on such units and to maintain their 9. The Minister for Industry also approves operations. 15 The State may guarantee some the termination of the period of extraordi­ or all of the debts contracted by the company nary administration. The creditors may seek to finance its continued operations during this satisfaction of their debts, in whole or in part, period. 16 The expenses of extraordinary only at the end of that period, either through administration, including debts contracted, the liquidation of the company's assets or have priority over those of the existing credi­ from the company's renewed profits. tors; this is also the case where a company continues trading within the framework of 17 the normal liquidation procedure.

guarantee pursuant to Article 2a of Law under Law No 95/1979, which permitted it to No 95/1979 to a steel company in extraordi­ continue trading. AFS sought repayment of nary administration, Altiforni e Ferriere di the money obtained, on the basis that the Servola SpA (the defendant in the main pro­ execution of the debt after the issue of such a ceedings, hereinafter 'AFS'), was an aid incom­ decree was contrary to Article 4 of Law patible with the common market in coal and No 544/1981. Ecotrade commenced an action 21 steel. The Commission also decided that on 4 October 1992 before the Tribunale di the suspension of payment of certain public Trieste, seeking a declaration that the demand debts by another steel company under extraor­ by AFS for reimbursement was ill-founded, dinary administration, Ferdofin Siderurgica being based on a decree which was incompat­ Sri, was an aid incompatible with the common ible with Community law in the field of State market in coal and steel and that the debts in aids. On 23 October 1993, the Tribunale 22 question must be recovered. rejected this request and granted AFS's counter-claim for reimbursement. This judg­ ment was confirmed on appeal by the Corte d'Appello (Court of Appeal) di Trieste. Ecotrade then appealed in cassation to the Corte Suprema di Cassazione (Supreme Court of Cassation, hereinafter 'the national court').

11. The present case relates to a debt of LIT 149 108 190 owed by AFS to Ecotrade 12. The national court referred the following for deliveries of steel. The Pretore (Magis­ question to the Court for a preliminary ruling trate) di Trieste (Italy) granted an order on pursuant to Article 177 of the EC Treaty: 30 July 1992, upon the failure of AFS to pay its debt to Ecotrade, transferring to the latter, up to the amount due, a debt owed to the former by a bank. On 28 August 1992, AFS informed Ecotrade that, pursuant to a finding of insolvency by the Tribunale (District Court) 'This court is not clear as to the interpreta­ di Trieste of 2 July 1992, the company had tion of: been placed under extraordinary administra­ tion by a ministerial decree of 23 July 1992,

13. Written and oral observations were sub­ mitted by Ecotrade, AFS, the Italian Republic and the Commission of the European Com­ This court is therefore uncertain whether, munities. according to the Treaty and the abovemen­ tioned Commission decision, a State measure which was adopted pursuant to Law No 95/1979 and which provides:

14. Ecotrade and the Commission submit that the application of the regime of extraordinary administration established by Law No (1) solely for the exemption of large enter­ 95/1979 to a steel company consti­ prises from the usual insolvency proceed­ tutes State aid within the meaning of ings; and Article 4(c) of the ECSC Treaty, which should have been notified pursuant to Article 6 of Commission Decision No 3855/91/ECSC of 27 November 1991 establishing Community 23 rules for aid to the steel industry. They submit that Law No 95/1979 constitutes a derogation from the general law on insol­ (2) for such exemption and, simultaneously, vency, in that its application is confined to for the enterprise to continue trading; industrial companies of a certain size with debts of a specified amount to specified credi­ tors, many of them in the public sector, and, furthermore, in that the decision to permit an insolvent company under extraordinary administration to continue trading is a matter 24 of ministerial discretion, excluding any sig­ may be regarded as aid, in view of the fact nificant role for creditors. Article 4(c) of the that Decree Law No 414 of 31 July 1981 (con­ verted into Law No 544/1981) provides in Article 4 that "individual actions for enforce­ 23 — OJ 1991 L 362, p. 57. This Decision has now been replaced ment may not be taken or pursued after the by Commission Decision No 2496/96/ECSC of 18 Decem­ measure initiating the special administration ber 1996 establishing Community rules for State aid to the steel industry, OJ1996L 338, p. 42. procedure has been adopted".' 24 — See Case C-241/94 France v Commission [1996] ECR I-4551.

ECSC Treaty extends to negative aids, which insolvency, consistent with the work of mitigate the charges which are normally UNCITRAL (United Nations Commission included in the budget of an undertaking and, on International Trade Law), which seeks to thus, are similar in character to and have the avoid unnecessary liquidation of companies a same effect as subsidies. The excusing of but which none the less serves the same pur­ payment of social security penalties, the pro­ pose: the ultimate satisfaction of creditors' hibition of execution of fiscal debts and pen­ debts. Although prepared to admit that the 26 alties, the possibility of a State guarantee of State guarantee of debts should be notified as debts incurred during extraordinary admini­ an aid, they argue that continued trading by stration and the merely symbolic registration a company during insolvency, without assis­ tax on assets disposed of by the company are, tance from State resources, is not, as such, in their view, direct subventions from State incompatible with the rules of free competi­ resources which represent advantages com­ tion. Extraordinary administration is a gen­ pared with normal insolvency procedure. The eral and automatic procedure, contingent on suspension of execution of State debts and of the running of interest also constitutes aid, satisfaction of certain conditions; only the within the framework of continued trading grant of a State guarantee is discretionary. under the extraordinary administration There is parallelism between extraordinary regime, whose objective is to maintain in administration and normal insolvency proce­ operation the economic activities of the com­ dure: both are initiated by a finding of insol­ pany in question, even though private credi­ vency; both entail the suspension of execu­ tors are also affected and similar suspensions tion of debts and of the running of interest; apply under the normal insolvency proce­ both permit, in the light of prevailing circum­ dure. Ecotrade argues that legislatively stances, continued trading by the insolvent ordained suspension of execution of private company. Continued trading under Article 90 debts is a form of aid, even though it does of the Law on Insolvency is only approved 27 not entail any charge on State resources; by a court-appointed committee of represen­ the Commission, on the other hand, submits tative creditors, whose decision cannot be that such a suspension results in a charge on reviewed, and, in contrast with the position public funds, as it normally results in the under extraordinary administration, can con­ extinction of the debts concerned and thus, tinue indefinitely. Extraordinary administra­ indirectly, in lower taxation receipts for the tion docs not involve any additional cost for Italian Treasury from those creditors. the State, which is a stranger to the debtor- creditor relationship; charges sustained by 28 private parties do not constitute aid. The suspension of payment of debts does not result in a different level of receipts for the 15. AFS and Italy argue that special admin­ Treasury in the long run, and may lead to istration is a perfectly normal response to

higher receipts if the company is able to trade interpretation of Articles 4(c) and 67 of that its way into a position to pay off its debts in Treaty. Article 4 of the ECSC Treaty pro­ their entirety. AFS disputes the pertinence of vides, in relevant part: the reference by the national court, as execu­ tion of Ecotrade's debt would be suspended even under the normal insolvency procedure. The provision regarding exoneration from social security debts only applied to social 'The following are recognised as incompatible security debts incurred up to 1986. The non- with the common market for coal and steel execution of fiscal debts under the extraordi­ and shall accordingly be abolished and pro­ nary administration regime does not consti­ hibited within the Community, as provided tute a charge on public funds, because the in this Treaty: possibility of executing such debts under the normal insolvency rules confers only a pro­ cedural advantage; pursuant to the principle of equality among creditors, the State must still account to the other creditors for any sums executed in excess of its proper share of the proceeds of the eventual liquidation. The special low registration tax benefits purchasing undertakings rather than the company which sells its assets. (c) subsidies or aids granted by States, or special charges imposed by States, in any form whatsoever;

Analysis

... .'

petition'. Article 67(1) states that '[a]ny action No 95/1979 does not grant special advantages by a Member State which is liable to have to coal or steel undertakings in comparison appreciable repercussions on conditions of with other industries. The selection of under­ competition in the coal or the steel industry takings to enjoy the alleged advantages of the shall be brought to the knowledge of the High extraordinary administration is made in accor­ Authority by the Government concerned'. dance with quite different criteria. As regards Article 67(2) enables the High Authority (the Article 67(1), the notification obligation which Commission) to take certain steps if an action it sets out is by no means inconsistent with is liable to provoke a serious disequilibrium. the clear and unconditional application of the Article 67(3) empowers the High Authority unqualified prohibition of State aid in to make recommendations to Member States Article 4(c). I conclude, therefore, that, in the whose actions allow special benefits to or circumstances of the present case, Article 4(c) impose special charges on the coal or steel of the ECSC Treaty is directly effective. undertakings within its jurisdiction in com­ parison with other industries in the same country.

I-7917

OPINION OF MR FENNEIXY — CASE C-200/97

I shall, case, is Decision No 97/754/ECSC, which therefore, concentrate on the effect on com relates to a single company, Ferdofin Srl. petition of the extraordinary administration While that individual Commission decision is regime as it applies to companies which con based on reasoning which is of obvious rel tinue trading. It is for the national court to evance to the present case, it is not in itself determine the applicability of the answer fur binding on either of the parties to the main nished by the Court to its question in the proceedings, nor on the national court in case of a company in extraordinary adminis deciding the outcome of those proceedings. tration which ceases to trade, in the light of a Furthermore, the fact that Italy did not pursue comparison of the provisions of Italian law its annulment action in respect of Decision which apply in that case and those under the No 97/754/ECSC cannot have as a result that general law on insolvency. the reasoning and operative part of that Deci sion must be applied, without possibility of challenge, in national proceedings to which

20. It is possible to read subsections (1) and trading, constitutes State aid prohibited by (2) of the question referred by the national Article 4(c) of the ECSC Treaty, in light of the fact that State measures which do not provide for disbursement of funds by the State but which enable the same result to be 33 — Commission Notice C 7/97 (ex E 13/92), loc. cit. achieved by special procedures as would have 34 — On the relationship of actions for annulment under Arti cle 173 of the EC Treaty and preliminary references under been obtained by such disbursement may be Article 177 of that Treaty, see Case C-188/92 TWD Textil- werke Deggendorf [1994] ECK. 1-833. said to constitute such aid.

23. This definition has also been adopted in the EC context, for example in Banco Exte- 36 rior de España, which concerned a selective tax exemption placing the company in ques­ 39 — Sloman Neptun, loc. cit., paragraph 21. tion in a more favourable financial position 40 — Ibid., paragraph 19. 37 41 — Case 290/83 [1985] ECR 439. than other taxpayers. The Court has inter­ 42 — Ibid., paragraph 15. preted the term 'aid' in Article 92(1) of the 43 — Ibid., paragraph 5; see also Steinike und Weinlig, loc. cit., EC Treaty as necessarily involving advantages paragraphs 21 and 22. In the light of the later judgments in Sloman Neptun, loc. cit., and Kirsammer-Hack, loc. cit., the granted directly or indirectly through State statement at paragraph 14 in Commission v France, loc. cit., 38 that 'aid need not necessarily be financed from State resources resources or some additional burden for to be classified as State aid', should be read, in my view, as referring only to hybrid situations where the State or pub­ licly controlled bodies administer funds which were origi­ nally private in origin, or the State establishes a scheme whereby a designated private body assists specific undertak­ 35 — Loc. cit., p. 19. ings. The definition used by the Court in Sloman Neptun is wide enough to embrace the special circumstances of Com- 36 — Loc. cit., paragraph 13. mission v France. It may be borne in mind in this context 37 •— Ibid., paragraph 14. that all State funds which arc financed by taxes arc ulti­ 38 — Van Tiggde, loc. cit., paragraphs 23 to 25; Fleischkontor, loc. mately private in origin. It is worth noting that the Court cit., paragraph 22; Sloman Neptun, ioc. cit., paragraph 19; implicitly, but clearly consciously, rejected the argument by CascC-189/91 Kirsammcr-Hack v Nurkan Sitial [1993] Advocate General Darmon at paragraph 42 of his Opinion ECR I-6185 (hereinafter 'Kirsammer-Hack'), paragraph 16; in Sloman Neptun for the definition of aid to be extended Joined Cases C-52/97 to C-54/97 Visado and Others v Ente to situations where the State docs not act as intermediary Poste Italiane [1998] ECR I-2629, hereinafter 'Viscido', between those whofinancea measure and those who benefit paragraph 14. from it.

the ECSC Treaty refers to 'aids granted by 25. Unlike Article 92(1) of the EC Treaty, States', the same definition of aid by reference Article 4(c) does not refer to aids as measures to State resources should also apply, in my which distort or threaten to distort competi­ view, in an ECSC context. This also serves to tion 'by favouring certain undertakings or the distinguish the terms used in Article 4(c) from production of certain goods'. None the less, those used in Article 67(3), which entrusts to a distinction between aids, which are selective the Commission supervision of the poten­ in nature, and State measures of general appli­ tially wider 'special benefits', which could cation in the fields of taxation, social security, extend to regulatory advantages which have regulation of the economy and so on, appears no immediate consequences for the public to me to be implicit in any Community State purse. aids regime. The essential distinction between general measures and selective aids is made in Article 67(3) of the ECSC Treaty, and should also, in my view, be applied in the case of Article 4(c). The alternative would imply a generalised review of all State regulation in such fields, by reference to the yardstick, not of the normally applicable rules in that State (for these themselves would be the subject- matter of examination), but, presumably, of the regulations in the other Member States. This would be counter-productive, by penal­ ising those States whose general economic organisation and regulation was the most com­ 24. In this context, I do not accept the Com­ petitive. Thus, even measures which benefit mission's argument that losses sustained by the entire coal-producing industry of the private creditors under the extraordinary Member State in question can constitute aid administration regime can be qualified as aid, within the meaning of Article 4(c) of the because of the resultant loss in tax receipts to ECSC Treaty if they are not of general appli­ the State. This is simply too remote a connec­ cation to other industrial sectors which fall tion with the State's disposal of its resources outside the field of application of that Treaty, to amount to aid. In so far as Law No 95/1979 as was the case in Steenkolenmijnen. The distorts the ordinary relationship of debtors condition of selectivity, of a positive or nega­ and private creditors, any resulting loss of tax tive alleviation in defined cases of generally revenue should be considered to be inherent applicable rules or burdens, is implicit in the in the system and should not be treated as a Court's reference in that case to 'interven­ means of granting a particular State-financed tions which, in various forms, mitigate the advantage to the debtor undertakings con­ charges which are normally included in the 44 45 cerned. budget of an undertaking'.

26. In the circumstances of the present case, 27. Where selectively applied rules on the questions whether the provisions of Law creditor-debtor relations are, relative to the No 95/1979 are selective in nature and whether normal rules, favourable to the debtor, and they constitute an aid funded by State the State is likely to be the major creditor, the resources are, to a great extent, linked. The effect of those rules will be to allocate public decision regarding the possible grant of a State resources to the debtor company in a way in guarantee under Article 2a of Law No 95/1979 which the normal rules would not, thus quali is clearly discretionary and, thus, selective, fying the measure in question as an aid. but is not material to the present case: it is the Although the general regulation of creditor- subject of a separate Commission decision in debtor relations, like that of relations between

tors. The existence of distinct insolvency to the debtor-creditor relationship. I should regimes for companies of different sizes and add, for the avoidance of doubt, that I believe types may be justified by considerations in that special rules favouring certain insolvent respect of which those differences are mate debtor companies could constitute aid even if rial, provided the net effect of the various the State were only a minor creditor, to the regimes on competitive conditions is the same. extent that the recovery of public resources Thus, for example, a Member State might seek was effectively renounced. The fact that the to subject the liquidation of small companies private creditors are obliged to sustain losses to a lighter administrative burden, in order on the same conditions as the State under a that their comparatively small resources might selective system of rules does not detract from be better preserved to satisfy their creditors. the characterisation of those State losses as However, the selection criteria employed in Law No 95/1979 appear to have a different objective and effect. In combination, they seem to single out large industrial companies which are predominantly indebted to the State or to public bodies. It is true that the Law does not formally require that the State be the insolvent company's major creditor, but the fact that the categories of creditor taken into account are largely public in nature, combined with the relatively large amounts required to be owed to the nominated cat egories of creditors, makes it highly probable that the State will almost always be an impor 46 — Sec Steenkolenmijnen, loc, cit.; Slotnan Neptun, loc. cit.; tant creditor. Kirsammer-Hack, loc. cit; and Viscido, loc. cit. 47 ·— Sec Van Tiggele, loc, cit.

aid. However, the stronger the causal link 29. It is now necessary to determine whether is between the State's role as creditor and the Law No 95/1979, and in particular the con­ application of special rules to the advantage tinuation of trading, operates to the advan­ of the debtor undertaking, the greater is the tage of the limited class of insolvent under­ aid-like effect of the rules in question. takings to which it applies. It is, perhaps, somewhat misleading to refer to an advantage for the debtor company, as, except for the apparently rare cases in which it trades its way out of its financial difficulties, the com­ pany will be wound up; until that time, it is merely a cipher for the creditors. Further­ more, the owners of the company are dispos­ 28. The second stage of selectivity in the sessed at the outset of both the normal and application of Law No 95/1979 arises upon the extraordinary insolvency procedures, in the exercise of the ministerial discretion to order to place its assets at the disposal of the permit an insolvent company under extraor­ creditors, so that they also receive no addi­ dinary administration to continue trading. tional benefit from extraordinary administra­ Even if this discretion were not exercised, as tion. We are, rather, concerned with an advan­ it is in fact exercised, in respect of an already tage secured for the economic activity of the limited class of companies, it would leave a company. The apparent objective of con­ degree of latitude to the ministers concerned tinued trading is to maintain the company's which would be liable to place certain under­ economic activity, even if this is under dif­ takings in a more favourable situation than ferent ownership, and even if this 'does not 49 represent the most rational distribution of others. Although account must be taken in reaching this decision of the perceived best production at the highest level of productiv­ 50 interests of the creditors, the fact that the ity'. For this reason, the special rate of reg­ continued trading of the company is required istration tax on asset disposals clearly consti­ to be compatible with national industrial tutes an aid. Even though it can be argued policy, and that the decision, by definition, that this benefits the purchaser of the assets relates to an important company with large in question rather than the insolvent com­ numbers of employees, and is specifically pany, it functions as an aid to the continued designed to preserve the economic activity of operation of the related economic activity to the company, must increase the likelihood the extent that the purchaser might have been that the decision will be influenced by factors deterred by the normal rate of registration other than the State's objective commercial tax. interest qua creditor. This conclusion is not affected by the fact that the continuation of trading is also possible under normal Italian insolvency procedure, with the sole purpose of maximising the value of the insolvent undertaking's assets.

which this might not take place under normal ciation of its debts by the State. It will be Italian insolvency law, which also defeats, in recalled, in this regard, that the business plan my view, the argument based on the degree need be drawn up only after the ministerial of parallelism between the normal and extraor decision to permit continued trading. Despite dinary insolvency procedures, as well as that the imposition of a maximum period of con regarding the alleged lack of pertinence of the tinued trading under extraordinary adminis- State aids issue to the outcome of the national tration, for which there is no equivalent in proceedings, an issue which was argued forc Article 90 of the Law on Insolvency, the ibly by AFS at the hearing. Community law period of continued trading, and, thus, of suspended execution and interest, appears on State aids is concerned with the effects likely, none the less, to be longer than the rather than with the objectives of State mea 51 period for liquidation of assets under the

trading. However, the greater likelihood of continued trading under extraordinary admin 31. It is in the nature of insolvency proceed istration, and the fact that the decision in this ings and of commercial life that one cannot regard rests with the executive rather than predict with absolute certainty that one pro with either the creditors or a competent court, cedure rather than another will invariably lead and that it is based, at least in part, on general to greater or lesser losses for the creditors, economic policy considerations rather than including the State. In my view, it would solely on the maximisation of the value of the defeat the purpose of the prohibition of State company's assets, means that the application aids in Article 4(c) of the ECSC Treaty if the of these rules may have very different effects considerable likelihood that the application of under the two procedures. In particular, the a special procedure will result in greater losses continuation of trading at a loss is likely to to the State qua creditor were not sufficient to characterise the measure in question as an affect the priority of the existing creditors' aid measure. Otherwise, national rules which debts, possibly leading to an effective renun are designed to aid particular undertakings or economic activities, but whose aid-like effects are subject to a contingency of some kind, would escape the reach of the prohibition of

I - 7923

OPINION OF MR FENNELLY — CASE C-200/97

criteria in accordance with which continued However, even a judicially administered insol­ trading is permitted, combined with other­ vency regime may give rise to problems if wise normal rules regarding the suspension of judicial discretion is required to be exercised execution of debts and of the running of in accordance with wider criteria, which effec­ interest, constitute State aid within the tively compel the competent court artificially meaning of Article 4(c) of the ECSC Treaty. to sustain the insolvent company's activities None the less, this conclusion, based as it is against the interests of the creditors, including on the perceived likely effects of the extraor­ the State. The same analysis regarding State dinary administration regime, should be open aid would then apply as I propose in the to refutation in any given case, where the present case. Furthermore, even in an insol­ undertaking in question is in a position to vency regime which is entirely subject to the demonstrate to the satisfaction of the compe­ creditors' wishes, it may be necessary to apply tent court that continued trading under the 'commercial actor' criterion to assess the extraordinary administration will not result voting behaviour of the State, especially where in greater loss to the State, in its capacity as it is a majority creditor and is in a position to creditor, than the application of the normal dictate certain outcomes which may not be in provisions of the Law on Insolvency. How­ its interests qua creditor. ever, compliance with this condition will prob­ ably necessitate some alteration of the proce­ dural rules regarding commencement of extraordinary administration or, at the very least, those governing the grant of permission for continued trading under that regime.

I - 7924

ECOTRADE v AFS

but, rather, for the national court, to deter­ sion of execution of fiscal debts and the renun­ mine the effect on the national proceedings ciation of all fines and penalties for delayed for recovery of the debt executed by Ecotrade social security payments. It has been argued of a finding that the application of Law that the former feature of extraordinary No 95/1979 in this case constituted State aid administration does not result in any greater prohibited by Article 4(c) of the ECSC Treaty. loss to the State qua fiscal creditor than the It cannot be argued that the disputed appli­ ordinary regime, under which the State enjoys cability of the extraordinary administration certain procedural privileges in this regard; procedure is manifestly irrelevant to those and that the latter rule regarding social secu­ 53 proceedings. rity penalties is no longer applicable. It is for the national court to verify both of these arguments regarding Italian law, and to decide on the existence of State aid by reference to 34. I wish, finally, to direct my attention to any advantage conferred by the provisions in two remaining provisions of Law No 95/1979 question, if applicable, as compared with the and its accompanying legislation: the suspen­ situation under normal insolvency procedure.

Conclusion

35. In the light of the foregoing, I propose that the Court answer the question referred by the Corte Suprema di Cassazione as follows:

The application to an insolvent undertaking within the meaning of Article 80 of the ECSC Treaty of special national rules on insolvency which are applicable only to specific classes of undertakings , which is likely to result in greater losses to the State in its capacity as creditor than the application of the normal insolvency rules, con­ stitutes State aid within the meaning of Article 4(c) of the ECSC Treaty.