JUDGMENT OF THE COURT (Eighth Chamber)

28 October 2020 ( *1 )

(Reference for a preliminary ruling – State aid – Regulation (EU) No 1407/2013 – Article 3 – De minimis aid – Article 6 – Monitoring – Undertakings exceeding the de minimis ceiling because of cumulation with aid obtained previously – Option of choosing between reduction and forgoing previous aid so as to comply with the de minimis ceiling)

In Case C‑608/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 20 June 2019, received at the Court on 12 August 2019, in the proceedings

Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL)

v

Zennaro Giuseppe Legnami Sas di Zennaro Mauro & C.,

THE COURT (Eighth Chamber),

composed of N. Wahl (Rapporteur), President of the Chamber, F. Biltgen and L.S. Rossi, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 25 June 2020,

after considering the observations submitted on behalf of:

–

Zennaro Giuseppe Legnami Sas di Zennaro Mauro & C., by A. Santoro and A. Cevese, avvocati,

–

the Italian Government, by G. Palmieri, acting as Agent, and by G.M. De Socio and M.F. Severi, avvocati dello Stato,

–

the Greek Government, by K. Boskovits and V. Karra, acting as Agents,

–

the Latvian Government, by V. Soņeca and K. Pommere, acting as Agents,

–

the European Commission, by F. Tomat and G. Braga da Cruz, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 3 and 6 of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid ( OJ 2013 L 352, p. 1 ).

2The request has been made in proceedings between the Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (National Institute for Insurance against Accidents at Work, Italy) (‘the INAIL’) and Zennaro Giuseppe Legnami Sas di Zennaro Mauro & C. (‘Zennaro’), concerning the INAIL’s refusal to pay funding granted in favour of Zennaro on the ground that it would result in the EUR 200000 ceiling laid down by Article 3(2) of Regulation No 1407/2013 being exceeded over a period of three fiscal years (‘the de minimis ceiling’).

Legal context

3Recitals 3, 10, 21 and 22 of Regulation No 1407/2013 state:

‘(3)

It is appropriate to maintain the ceiling of EUR 200000 as the amount of de minimis aid that a single undertaking may receive per Member State over any period of three years. That ceiling remains necessary to ensure that any measure falling under this Regulation can be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition.

…

(10)

The period of three years to be taken into account for the purposes of this Regulation should be assessed on a rolling basis so that, for each new grant of de minimis aid, the total amount of de minimis aid granted in the fiscal year concerned and during the previous two fiscal years needs to be taken into account.

…

(21)

The Commission has a duty to ensure that State aid rules are complied with and in accordance with the cooperation principle laid down in Article 4(3) of the Treaty on European Union, Member States should facilitate the fulfilment of this task by establishing the necessary tools in order to ensure that the total amount of de minimis aid granted to a single undertaking under the de minimis rule does not exceed the overall permissible ceiling. To that end, when granting de minimis aid, Member States should inform the undertaking concerned of the amount of de minimis aid granted and of its de minimis character and should make express reference to this Regulation. Member States should be required to monitor aid granted to ensure the relevant ceilings are not exceeded and the cumulation rules are complied with. To comply with that obligation, before granting such aid, the Member State concerned should obtain from the undertaking a declaration about other de minimis aid covered by this Regulation or by other de minimis regulations received during the fiscal year concerned and the previous two fiscal years. Alternatively it should be possible for Member States to set up a central register with complete information on de minimis aid granted and check that any new grant of aid does not exceed the relevant ceiling.

(22)

Before granting any new de minimis aid each Member State should verify that the de minimis ceiling will not be exceeded in that Member State by the new de minimis aid …’

4Article 3 of that regulation, entitled ‘ De minimis aid’, provides:

‘1. Aid measures shall be deemed not to meet all the criteria in Article 107(1) of the Treaty, and shall therefore be exempt from the notification requirement in Article 108(3) of the Treaty, if they fulfil the conditions laid down in this Regulation.

2. The total amount of de minimis aid granted per Member State to a single undertaking shall not exceed EUR 200000 over any period of three fiscal years.

…

4. De minimis aid shall be deemed granted at the moment the legal right to receive the aid is conferred on the undertaking under the applicable national legal regime irrespective of the date of payment of the de minimis aid to the undertaking.

5. The ceilings laid down in paragraph 2 shall apply irrespective of the form of the de minimis aid or the objective pursued … The period of three fiscal years shall be determined by reference to the fiscal years used by the undertaking in the Member State concerned.

6. For the purposes of the ceilings laid down in paragraph 2, aid shall be expressed as a cash grant. All figures used shall be gross, that is, before any deduction of tax or other charge. Where aid is granted in a form other than a grant, the aid amount shall be the gross grant equivalent of the aid.

Aid payable in several instalments shall be discounted to its value at the moment it is granted. The interest rate to be used for discounting purposes shall be the discount rate applicable at the time the aid is granted.

7. Where the relevant ceiling laid down in paragraph 2 would be exceeded by the grant of new de minimis aid, none of that new aid may benefit from this Regulation.

…’

5Article 6 of that regulation, entitled ‘Monitoring’, provides:

‘1. Where a Member State intends to grant de minimis aid in accordance with this Regulation to an undertaking, it shall inform that undertaking in writing of the prospective amount of the aid expressed as a gross grant equivalent and of its de minimis character … Before granting the aid, the Member State shall obtain a declaration from the undertaking concerned, in written or electronic form, about any other de minimis aid received to which this Regulation or other de minimis regulations apply during the previous two fiscal years and the current fiscal year.

2. Where a Member State has set up a central register of de minimis aid containing complete information on all de minimis aid granted by any authority within that Member State, paragraph 1 shall cease to apply from the moment the register covers a period of three fiscal years.

3. A Member State shall grant new de minimis aid in accordance with this Regulation only after having checked that this will not raise the total amount of de minimis aid granted to the undertaking concerned to a level above the relevant ceiling laid down in Article 3(2) and that all the conditions laid down in this Regulation are complied with.

4. Member States shall record and compile all the information regarding the application of this Regulation. Such records shall contain all information necessary to demonstrate that the conditions of this Regulation have been complied with. Records regarding individual de minimis aid shall be maintained for 10 fiscal years from the date on which the aid was granted. Records regarding a de minimis aid scheme shall be maintained for 10 fiscal years from the date on which the last individual aid was granted under such a scheme.

5. On written request, the Member State concerned shall provide the Commission … with all the information that the Commission considers necessary for assessing whether the conditions of this Regulation have been complied with, and in particular the total amount of de minimis aid … received by any undertaking.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

6Zennaro is active in the wood and derived products sector. On 16 June 2014, it submitted an application for funding to the INAIL for the granting of financial assistance provided for in the 2013 public notice issued by the INAIL, the subject of which was ‘incentives for undertakings for implementing plans concerning health and safety at work’ (‘the public notice’).

7The procedure for the call for projects, governed by that public notice, lays down four stages: (i) telematic transmission of applications; (ii) sending of documentation finalising the application; (iii) verification by the INAIL of the data transmitted and acceptance of the application; and, finally, (iv) examination and preparation of a report enabling the financial assistance to be actually paid. During the latter stage, the undertaking was required to submit a ‘ de minimis ’ declaration showing that it was eligible for financial assistance in respect of the amount applied for. In the absence of such eligibility, aid already granted would have to be revoked.

8By decision of 30 October 2014, the INAIL notified Zennaro that the project was accepted for an amount of EUR 130000, with the possibility of obtaining advance funding, which was effectively requested, of EUR 65000 subject to the prior presentation of a bank guarantee.

9However, it became apparent in the course of the procedure that, on 1 August 2014, Zennaro, together with other undertakings in temporary association, had been accepted by the Regione Veneto (Veneto Region, Italy) for further financial assistance amounting to a total of EUR 64 483.91, which was paid to it. Furthermore, that company had also obtained other public funding for an amount of EUR 18 985.26. The referring court states that the addition of those two sums to the amount of EUR 130000 accepted by the INAIL amounted to a sum of EUR 213 469.17 and resulted in the de minimis ceiling being exceeded.

10By letter of 12 June 2015, Zennaro asked the INAIL whether, in order to avoid that ceiling being exceeded, it was appropriate either to reduce the amount of financial assistance at the stage at which the report was prepared or to present a variation of the project with the aim of reducing the amount of the proposed project and, consequently, the amount of financial assistance.

11Having received no reply to that letter, Zennaro, by email of 12 August 2015, opted for the second solution, submitting to the INAIL a variation of the project which reduced its total cost to EUR 171 386.40 and, consequently, lowered the amount of financial assistance to EUR 111 401.16.

12By decisions of 5 October and 18 November 2015, the INAIL, while finding the variation of the project admissible from a technical perspective, took the view that it could not allow Zennaro to receive that funding, ruling out the possibility of granting it in part, unless the company forwent completely the previous funding. In the second decision, the INAIL thus stated that ‘financial assistance may be paid only on condition that the undertaking forgoes previous financial assistance granted by another body’.

13Zennaro then brought an action before the Tribunale amministrativo regionale per il Veneto (Regional Administrative Court for Veneto, Italy) for annulment of the decision of 18 November 2015.

14By certified email of 27 April 2016, Zennaro sent the INAIL documents showing that it had forgone the financial assistance paid by the Veneto Region, in the amount of EUR 15000, paid over to the other members of the temporary association, thus establishing that the State aid received did not exceed the de minimis ceiling.

15By decision of 6 June 2016, the INAIL confirmed that, because of the amount of financial assistance applied for, it could not proceed to pay it, since the sum of the three types of public funding would then exceed the de minimis ceiling and partial payment of the financial assistance would be contrary to Article 3(7) of Regulation No 1407/2013. While taking note of evidence of the forgoing of the previous regional financial assistance and of redistribution to the other members of the temporary association, the INAIL disputed the relevance thereof, stating that ‘it does not appear that this undertaking has forgone and repaid the financial assistance previously received to the body which paid it and [that] its redistribution between the members of the temporary association is irrelevant’. For those reasons, the INAIL sought repayment of the funding advance of EUR 65000 already paid, failing which enforcement of the bank guarantee would be sought.

16On 26 June 2016, Zennaro also sought, by means of additional pleas, annulment of the INAIL’s decision of 6 June 2016.

17By judgment of 7 September 2016, the Tribunale amministrativo regionale per il Veneto (Regional Administrative Court for Veneto) upheld Zennaro’s action in the light of the opinion expressed by the Directorate-General for Competition of the European Commission (DG COMP) in reply to a question which Zennaro had put to it on the interpretation of Article 3(7) of Regulation No 1407/2013. In its reply, DG COMP stated that the financial assistance could be proportionately reduced by the public body responsible for paying it, so as to comply with the de minimis ceiling, and that it was for the national authorities to choose the preferred option, both solutions – the proportionate reduction and the complete rejection of the financial assistance – being theoretically consistent with that regulation.

18Thus, according to that court, ‘the interpretation given by the [INAIL] of Article 3(7) of Regulation No 1407/2013, as to the inadmissibility of the reduction of the funding in the amount of the part of the financial assistance exceeding the ceiling set by that regulation at EUR 200000, although theoretically consistent with the EU rules on de minimis aid, in order to be properly applicable in the present case, should have been expressly provided for in the [public notice]’, in particular with the objective of protecting the participants’ legitimate expectations. It thus took the view that the restrictions relied on by the INAIL were, on the contrary, unforeseeable in the light of the criteria set out in the public notice and could ‘be rebutted in the light of a less restrictive interpretation of the EU rules from a formal point of view and more consistent with the objective [of the public notice] “of encouraging undertakings to implement projects to improve health and safety levels at work”’.

19The INAIL brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy).

20Relying in particular on a combined reading of Article 3(2), (4) and (7) of Regulation No 1407/2013, the INAIL submits that de minimis aid must be deemed granted at the moment the legal right to receive it is conferred on the undertaking, irrespective of whether or not it is actually paid. Those provisions contain mandatory requirements that are directly applicable in the national legal order. Consequently, compliance with the de minimis ceiling must be verified at the time the financial assistance is granted, that is to say, in this case, at the stage at which the application is accepted. Any rectifications by the applicant should therefore be introduced at that stage.

21Zennaro disputes the interpretation advocated by the INAIL. First, it submits that the provisions of the public notice are the only ones applicable since it is clear from Article 3(4) of Regulation No 1407/2013 that it is for the ‘applicable national legal regime’ to determine when ‘the legal right to receive the aid is conferred on the undertaking’. Secondly, it submits that Article 6(5) of that regulation, which concerns the obligation of a Member State to communicate to the Commission any information which the latter considers necessary, covers all aid actually received by the undertaking, not only that granted on the basis of the first granting measure. Thirdly and finally, it considers that the rules on de minimis aid were adopted not to penalise undertakings but to reduce the administrative burden in the case of aid of a limited amount, and that the strict interpretation proposed by the INAIL would lead to punitive applications contrary to the spirit of those rules.

22The referring court takes the view that both interpretations proposed by the parties to the main proceedings may be accepted. On the one hand, the interpretation relied on by the INAIL is more favourable to the smooth running of the procedure, in that the conditions of access to financial assistance are examined only at the time when the application is accepted. On the other hand, the interpretation put forward by Zennaro allows for broad conditions of access to financial assistance, including for competitors that, not yet having the certainty that they will be accepted, do not have the option of amending their applications so as not to exceed the ceiling. The handling of possible changes to the applications for funding would be more difficult to implement if it were carried out at the stage at which applications are examined since it would have an effect on the classification order established until then.

23As regards the relevant provisions of Regulation No 1407/2013, the referring court notes, first of all, that Article 3(4) thereof, according to which aid is deemed ‘granted at the moment the legal right to receive the aid is conferred on the undertaking … irrespective of the date of payment of the … aid’, in the first place, does not appear to be irreconcilable with a procedural scheme under which a first acceptance stage is followed by a more detailed examination, at the end of which the right to financial assistance may ultimately be deemed ‘granted’. In the second place, that provision states that the case of aid ‘granted’ is to be understood ‘under the applicable national legal regime’, which suggests that that regime may correspond to different procedural schemes, which are not predetermined. Next, it points out that, under Article 6(3) of the regulation, aid is paid after compliance with the ceiling has been checked, which may also lead to the conclusion that it is only after such a check that the right to receive financial assistance is definitively ‘conferred’. Finally, it follows from the wording of the last sentence of Article 6(1) of that regulation, in particular from the reference to ‘other de minimis aid received’, that the declaration must list all aid received. According to the referring court, it is necessary to determine whether the decision to forgo previous financial assistance must necessarily occur before it is actually paid.

24In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)

Must the rules on the grant of aid laid down in Articles 3 and 6 of Regulation No 1407/2013 be interpreted as meaning that it is possible for an applicant undertaking, which finds itself exceeding the maximum permissible ceiling on account of the cumulation with previous financial assistance, to opt – up to the actual payment of the financial assistance applied for – to reduce the funding (by amending or varying the project) or to forgo (in full or in part) previous financial assistance, possibly already received, in order to fall below the maximum limit payable?

(2)

Must those provisions be interpreted as meaning that the various options proposed (variation or forgoing) apply even if they are not expressly provided for in the national legislation and/or in the public notice relating to the grant of the aid?’

Consideration of the questions referred

The first question

25By its first question, the referring court asks, in essence, whether Articles 3 and 6 of Regulation No 1407/2013 must be interpreted as meaning that an undertaking, the Member State of establishment of which intends to grant it de minimis aid that, because of existing previous aid, would raise the total amount of aid granted to that undertaking to a level above the de minimis ceiling, may opt, until such aid is actually paid, to reduce the funding required or to forgo, in full or in part, previous aid already received, so as to not to exceed that ceiling.

26It should be noted, first, that Articles 3 and 6 of Regulation No 1407/2013 must be placed back in the overall context of that regulation, the purpose of which is to allow derogations, for State aid of a limited amount, from the rule that all aid must, prior to implementation, be notified to the Commission (see, to that effect, judgment of 28 February 2018, ZPT, C‑518/16 , EU:C:2018:126 , paragraphs 50 and 51 ).

27It follows that both Article 3 of that regulation, the purpose of which is to define the de minimis aid that derogates from the principle of prohibition of aid laid down by the Treaty, and Article 6 thereof, which concerns the monitoring carried out by the Member States when such aid is granted, must be interpreted strictly.

28Secondly, the interpretation of a provision of EU law requires account to be taken not only of its terms, but also of the context in which it is set and the objectives pursued by the act of which it forms part (see, to that effect, judgment of 9 October 2019, BGL BNP Paribas, C‑548/18 , EU:C:2019:848 , paragraph 25 and the case-law cited).

29In the first place, with regard to the terms used in the provisions of Regulation No 1407/2013 at issue, it is important to point out, first, that Article 3(7) thereof provides that ‘where the relevant [ de minimis ] ceiling … would be exceeded by the grant of new de minimis aid, none of that new aid may benefit from [Regulation No 1407/2013]’. It is clear from the wording of that provision that the moment at which it is necessary to assess whether cumulation with other de minimis aid exceeds the de minimis ceiling is that of the ‘grant’ of the aid.

35Secondly, as regards the provisions of Article 6 of Regulation No 1407/2013 concerning the monitoring carried out by the Member States to ensure that the rules on cumulation are complied with, it must be noted that Article 6(2) of that regulation, which provides that, where a Member State has set up a central register of de minimis aid containing information on all aid granted by its various authorities, Article 6(1) of that regulation ceases to apply, is not applicable to the case in the main proceedings. The central register of de minimis aid was not put in place by the Italian Republic until 12 August 2017, that is to say, on a date subsequent to the application for aid at issue.

36Moreover, with regard to Article 6(1) and (3) of Regulation No 1407/2013, those provisions provide that ‘before granting the aid, the Member State shall obtain a declaration from the undertaking concerned … about any other de minimis aid received … during the previous two fiscal years and the current fiscal year’ and, in all language versions other than the Italian language version, that ‘a Member State shall grant new de minimis aid … only after having checked that this will not raise the total amount of de minimis aid granted to the undertaking concerned to a level above the relevant [ de minimis ] ceiling’. It is thus clear from those provisions that the monitoring carried out by the Member States to ensure that the rules on cumulation are complied with must take place ‘before granting the aid’.

37That interpretation is not invalidated by the fact that, in the Italian language version alone of Article 6(3) of the regulation, it is stated that a Member State does not ‘pay’ ( eroga ) new aid, whereas all the other versions use a verb which corresponds, in Italian, to the verb ‘grant’ ( concedere ). According to settled case-law, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference, inter alia, to the general scheme of the rules of which it forms part (judgment of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17 , EU:C:2019:403 , paragraph 88 and the case-law cited). Recitals 21 and 22 of that regulation – which refer, in essence, to Article 6(1) and (3) – use, in the Italian language version, the terms ‘ aiuti concessi ’ (aid granted) and ‘ prima di concedere ’ (before granting). Consequently, the discrepancy between the language versions of Article 6(3) of Regulation No 1407/2013 is the result of a mistranslation of the Italian language version of that provision.

38In the second place, as regards the context of which Articles 3 and 6 of Regulation No 1407/2013 are a part, it must be held that that regulation contains no provisions pursuant to which applicant undertakings may, if necessary, amend their applications for aid by reducing the amount thereof or by forgoing previous aid, so as to comply with the de minimis ceiling.

39Therefore, since, in accordance with Article 3(4) of that regulation, the granting of aid is governed by the applicable national rules, the Member States enjoy broad discretion when determining the procedure for granting such aid.

40In that regard, it should be noted that recital 21 of the regulation states that, in accordance with the principle of cooperation laid down in Article 4(3) TEU, Member States must facilitate compliance with State aid rules ‘by establishing the necessary tools in order to ensure that the total amount of de minimis aid granted to a single undertaking under the de minimis rule does not exceed the overall permissible ceiling’.

41In the third place, as regards the objectives of Regulation No 1407/2013, it should be noted that the de minimis legislation is intended to reduce the administrative burden on undertakings, the Commission and the Member States (see, to that effect, judgment of 7 March 2002, Italy v Commission, C‑310/99 , EU:C:2002:143 , paragraph 94 ), based on the principle, recalled in recital 3 of the regulation, that aid in an amount not exceeding the de minimis ceiling does not have any effect on trade between Member States and is not such as to distort competition.

43In the light of all the foregoing, the answer to the first question is that Articles 3 and 6 of Regulation No 1407/2013 must be interpreted as meaning that an undertaking, the Member State of establishment of which intends to grant it de minimis aid that, because of existing previous aid, would raise the total amount of aid granted to that undertaking to a level above the de minimis ceiling, may opt, until such aid is granted, to reduce the funding required or to forgo, in full or in part, previous aid already received, so as not to exceed that ceiling.

The second question

44By its second question, the referring court asks, in essence, whether Articles 3 and 6 of Regulation No 1407/2013 must be interpreted as meaning that an undertaking requesting aid may amend its application for aid by reducing the funding required or by forgoing previous aid already received, so as not to exceed the de minimis ceiling, even though the legislation of the Member State in which it is established does not so provide.

45This question calls for an answer that is intrinsically linked to the answer to the first question. On the one hand, as stated in paragraph 38 above, Regulation No 1407/2013 contains no provision pursuant to which applicant undertakings may, if necessary, amend their applications for aid by reducing the amount thereof or by forgoing previous aid, so as to comply with the de minimis ceiling, and therefore imposes no obligation on the Member States to that effect. On the other hand, as is apparent from paragraphs 42 and 43 above, Member States may allow applicant undertakings to amend their applications for aid, so as to avoid that the grant of new de minimis aid raises the total amount of aid granted to a level above the de minimis ceiling, where such changes are made before the de minimis aid is granted.

Costs

47Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

1.Articles 3 and 6 of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid must be interpreted as meaning that an undertaking, the Member State of establishment of which intends to grant it de minimis aid that, because of existing previous aid, would raise the total amount of aid granted to that undertaking to a level above the EUR 200000 ceiling over a period of three fiscal years laid down in Article 3(2) of Regulation No 1407/2013, may opt, until such aid is granted, to reduce the funding required or to forgo, in full or in part, previous financial assistance already received, so as not to exceed that ceiling.

2.Articles 3 and 6 of Regulation No 1407/2013 must be interpreted as meaning that Member States are not required to allow applicant undertakings to amend their applications for aid before such aid is granted, so as not to exceed the EUR 200000 ceiling over a period of three fiscal years laid down by Article 3(2) of Regulation No 1407/2013. It is for the referring court to assess the legal consequences of the fact that undertakings do not have the option of making such changes, it being understood that they may be made only at a date prior to that on which the de minimis aid is granted .

[Signatures]

( *1 ) Language of the case: Italian.