Brussels, 14/02/2014 (Agence Europe) - “When executing a Commission decision declaring an aid scheme illegal and incompatible with the internal market, the national court is not bound by the institution's later statements of position, but must take them into consideration by virtue of the principle of sincere cooperation. In that regard, the calculations made by the national court to quantify the amounts to be repaid may, on the basis of all the factors of which it has been made aware, result in an amount equal to zero”, stated the European Court of Justice on 14 February in ruling C-69/13 in response to a question asked by the Tribunale Civile di Roma in Italy.
In the context of the digital switchover of television signals, which began in Italy in 2001, with November 2012 as the statutory deadline by which switchover had to be accomplished, the 2004 Finance Law made provision for a state subsidy of €150 to be granted to every user who purchased or rented equipment for the reception of TV signals transmitted using digital terrestrial technology. In 2005, that aid was refinanced, but the subsidy was reduced to €70.
Following complaints filed by Centro Europa 7 Srl and Sky Italia Srl, the Commission declared, by Decision 2007/3741, that the aid scheme in question was illegal and incompatible with the internal market and ordered Italy to recover the aid from the recipients (together with interest). After the adoption of that decision, the Commission and Italy cooperated to identify the recipients and quantify the precise amounts to be recovered. The Commission agreed that TIMedia and Fastweb had made no additional profits and so did not have to make a repayment. However, the Commission stated that the amount of aid to be recovered from Mediaset was €6,844,361. On the basis of new facts, by letter of 11 June 2008, the Commission reduced that amount to €4,926,543.22.
The Italian court asked whether, in order to ensure that a Commission decision which, while declaring an aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid in question, does not identify the individual beneficiaries or determine the precise amounts to be recovered is executed, the national court is bound by the positions adopted by that institution as regards the exact amount of aid to be recovered from a particular recipient.
In its judgment, the Court of Justice notes that the Commission thus has exclusive competence, subject to review by the EU Courts, to assess the compatibility of aid with the internal market. However, it is not required, when it orders restitution of aid declared incompatible with the internal market, to fix the precise amount of the aid to be reimbursed. Decision 2007/374 is accordingly binding on the Italian Republic to which it was addressed and binds the national court.
However, the letters sent subsequently by the Commission to the Italian Republic as part of the exchanges to ensure the immediate and effective execution of that decision - which letters identify Mediaset as a recipient and specify an exact amount of aid to be recovered from it - do not constitute decisions. Nevertheless, the Court points out that, “in the context of the sincere cooperation between the national courts and the Commission, the former must take all the necessary measures to ensure fulfilment of the obligations under EU law… To the extent that the statements of position are intended to facilitate the accomplishment of the task of the national authorities in the execution of the recovery decision, the national court must take them into account as a factor in the assessment of the dispute before it and must state reasons having regard to all the documents in the file submitted to it”.
On the question of whether a national court can say that the amount of aid to be recovered is zero, the Court of Justice says that yes, it can: “Where, in its decision, the Commission has not identified the recipients or determined the precise amounts to be reimbursed, the national court may thus conclude, without calling into question the validity of the decision or the obligation to repay the aid, that the amount of aid to be reimbursed is equal to zero where that follows from the calculations made on the basis of all the relevant information of which it has been made aware”. (FG/transl.fl)