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C 101/2 EN Official Journal of the European Communities 3.4.

98

STATE AID
CØ87/97 (ex NØ527/97)
Italy

(98/C 101/02)

(Articles 92 to 94 of the Treaty establishing the European Community)

Commission communication pursuant to Article 93(2) of the EC Treaty to other Member States
and interested parties concerning aids which Italy (Liguria region) has decided to grant for
agricultural cooperatives

By the following letter, the Commission informed the Nevertheless, the Commission considered that investment
Italian Government of its decision to open the projects started after 1 January 1996 are deemend
procedure. eligible to receive aid under this draft regional law. This
means that in practice aid can be granted to cooperatives
retroactively for projects that are currently being
‘By letter dated 31 July 1997, registered on 1 August executed or completed.
1997, the Permanent Representation of Italy to the
European Union notified the abovementioned aid
measures to the Commission according to the procedure
provided for in Article 93(3) of the Treaty. As a general principle, the Commission considers that, in
the framework of State aid to productive investment, the
By letter dated 23 October 1997, registered on 27 existence of clauses allowing a retroactive effect
October 1997, the Permanent Representation of Italy to normally does not lead to any development of the sector
the European Union provided the Commission with the or the region concerned. In such cases, the role of the
additional information required by the Commission’s aid to stimulate investment may be non-existent since
letter of 21 August 1997. these investments have been made without the existence
of a supporting law. Aid for investments under these
circumstances is usually regarded by the Commission as
The draft regional law notified by the Italian authorities operating aids. The aid would not therefore be regarded
falls within the scope of the Community guidelines for as facilitating the development of the sector and would
State aid concerning investments for processing and not qualify for the derogation foreseen in Article
marketing of agricultural productsØ(Î). The Commission 92(3)(c) of the TreatyØ(Ï).
noted that respect of these provisions is explicitly
indicated in the draft law.

During the examination procedure, the Italian authorities


In particular, the Commission noted that specific sent the Commission arguments for the maintenance of
provisions are included in order to ensure respect of the this retroactivity clause. Firstly, the Italian authorities
sector limits in force at the individual investment level. maintain that, with the adoption of the Community
At present, the sector limits in question are those of guidelines for processing and marketing investments on
Commission Decision 94/173/EC of 22 March 1994. 2 February 1996Ø(Ð), the Commission has also requested
Furthermore, the Commission took into account that all respect of these guidelines after 1 January 1996. The
eligible expenditure under the draft regional law (land, Italian authorities accepted the application of these
buildings and equipment) falls within the definition of guidelines after this date.
‘‘investment’’ within the meaning of point 3(a)(ii) of the
Community guidelines. The aid rate of 55Ø%
corresponds to the maximum ceiling accepted for
investments in regions (like Liguira) not included in The Commission would point out however that
Objective 1. compliance with the Community guidelines was not
required at the date publication (2 February 1996), but at
the date at which the Member State was informed of the
Taking account of the precedent, the Commission could
Commission’s adoption of the guidelines (20 October
eventually conclude that the regional draft law respects
1995). Furthermore, in this framework, the date after
the relevant Community guidelines and consequently
which the guidelines are in force for all new aid schemes
benefits from the derogation foreseen in Article 92(3)(c)
of the Treaty.

(Ï)ÙJudgment of the Court of 17 September 1980 in case 730/79


Philip Morris v. the Commission; ECR 1980, p. 2671-2693.
(Î)ÙOJ C 29, 2.2.1996, p. 4. (Ð)ÙOJ C 29, 2.2.1996.
3.4.98 EN Official Journal of the European Communities C 101/3

is not linked to the starting point for eligibility of Within the framework of this procedure, the
investments under a certain scheme, that should be at Commission requests the Italian Government to submit
least the date of the approval of the scheme. its observations, which should reach the Commission
within one month of the date of this letter. This
Secondly, the Italian authorities cite Council Regulation information should be based on the considerations set
(EC) No 2082/93Ø(Î) concerning implementation out in this letter and should allow the Commission to
provisions for the Structural Funds as allowing retro- form a judgment as to compliance or otherwise of these
active financing for projects included in the Community aids with Community State aid provisions.
financed Structural Funds programmes.
Further, the Commission informs the Italian authorities
that, within the framework of this same procedure, it will
The Commission considers this fact is a result of a invite the other Member States and any interested party,
combination of two different approaches followed in the by means of a notice published in the Official Journal of
Structural Funds and competition procedures. In fact, aid the European Communities, to present any comments
for investment in the framework of the structural within one month of publication.
programmes is included in a logic of programming. This
implies that legislation has to refer to initial and final The Commission draws the attention of the Italian auth-
dates for the eligibility of expenses in order to clarify orities to the letter which it sent to all Member States on
financial links between the Community and the Member 3 November 1983 concerning their obligations under
State in question. Actual dates for the realisation of Article 93(3) of the EC Treaty, and to the memorandum
projects, in so far as these are supposed to contribute to published in the Official Journal of the European
the achievement of the objectives of the programme, are Communities C 318 of 24 November 1983, page 3,
not relevant. This is not the case in the framework of a where it was stated that aid granted illegally, that is aid
State aid analysis, where the Commission is limited to granted without awaiting the final decision of the
the assessment of the proposals submitted by the Commission under the Article 93(2) procedure, may be
Member State, irrespective of their form or internal required to be recovered. Recovery must be made in
coherence, but maintaining regard to the necessity of the accordance with the provisions of Italian law. Interest,
aid. which is payable from the date of granting of the aid in
question, must be calculated according to the reference
Contrary to Commission’s practice in applying Articles rate used by the Commission in connection with regional
92 to 94 of the Treaty and taking account of the aid.
precedent, the Commission would normally consider this
aid to be operating aid, which by its nature does not lead Independently of possible recovery of aid, the
to any development of the sector or the regionØ(Ï). Such Commission may refuse to charge to the EAGGF expen-
measures lead directly to the improvement of the diture on national measures directly affecting
conditions of production and marketing of products Community measures.’
relative to those of other European Union operators who
are not receiving comparable aid. In view of the The Commission hereby gives the other Member States
foregoing, the aid under examination would appear to and interested parties notice to submit their comments on
fall within the scope of Article 92(1) of the Treaty but as the measures in question within one month of the date of
far as the Commission can tell at present without the publication of this notice to:
appearing to qualify for any of the derogations provided
for in paragraphs 2 and 3 of that Article. European Commission
Rue de la Loi/Wetstraat 200
B-1049 Brussels.
Consequently the Commission has decided to open the
procedure provided for in Article 93(2) of the Treaty in The comments will be communicated to the Italian
respect of the notified measure. Government.

(Î)ÙOJ L 193, 31.7.1993, p. 20.


(Ï)ÙJudgment of the Court of First Instance of 8 June 1995 in
case T-459/93, Siemens SA v. the Commission; ECR 1995,
p. II-1675.