Judgment summary
This is a preliminary ruling given by the Tenth Chamber of the Court of Justice on joined references from the Tribunale amministrativo regionale per la Lombardia, Italy. The references concerned the interpretation of Article 107(3)(c) TFEU and the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty.
The disputes arose between Acciaierie d'Italia SpA (ADI), in extraordinary administration, and the Cassa per i servizi energetici e ambientali (CSEA), after CSEA refused to include ADI on the Italian lists of undertakings with high natural gas and electricity consumption for 2025.
The Court held that Article 107(3)(c) TFEU, read with the Guidelines, does not preclude national legislation excluding undertakings under extraordinary administration from such energy consumption benefits, because admission to that scheme is conditional on the insolvency of the undertaking concerned.
Background
ADI, the parent company of Italy's leading steel group, was placed under the Italian extraordinary administration scheme in accordance with Decree-Law No 347/2003 and was declared insolvent by a judgment of the Tribunale fallimentare di Milano of 29 February 2024 (paragraph 19).
On 14 November 2024, ADI applied to CSEA to be included on the list of undertakings with high electricity consumption and on the list of undertakings with high natural gas consumption for 2025, seeking the support provided by Article 3 of Decree-Law No 131/2023 (electricity) and by Article 21(1) of Law No 167/2017 together with Article 3(1) of Ministerial Decree No 541/2021 (gas), as it had done in previous years (paragraph 19).
On 2 December 2024, CSEA notified preliminary opinions rejecting both applications on the ground that ADI, being under extraordinary administration, was an 'undertaking in difficulty' within the meaning of point 20(c) of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (paragraph 20). CSEA formally rejected the applications on 17 December 2024, on the same ground, after considering ADI's observations (paragraph 21).
ADI brought two actions before the referring court seeking annulment of those decisions, arguing that an undertaking under extraordinary administration cannot be regarded as 'in difficulty' because the scheme specifically aims at continuing, relaunching or transforming the undertaking's activities (paragraph 22).
Core dispute
The referring court asked whether Article 107(3)(c) TFEU and the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty preclude national legislation that excludes undertakings placed under extraordinary administration, within the meaning of Article 2 of Decree-Law No 347/2003, from the support schemes for undertakings with high natural gas consumption (Article 21 of Law No 167/2017 and Article 1(3) of Ministerial Decree No 541/2021) and high electricity consumption (Article 3 of Decree-Law No 131/2023) (paragraphs 24-25).
The core question was whether an undertaking placed under the extraordinary administration scheme falls within the concept of 'undertaking in difficulty' as defined in point 20 of the Guidelines, given that the scheme is intended to preserve continuity and relaunch the undertaking rather than liquidate it (paragraph 23).
Court findings
The Court first addressed admissibility, rejecting the Italian Government's argument that the requests were inadmissible for lacking reasons or concerning purely national law matters. It found that the orders for reference set out adequate reasons for seeking interpretation of EU law and that the questions were not purely domestic (paragraphs 27-32).
On the substance, the Court recalled that the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty limit the Commission's discretion under Article 107(3)(c) TFEU and form part of the legal framework for interpretation (paragraph 35). EU law does not preclude national legislation imposing stricter conditions for access to aid than EU rules require, but the Court found that the Italian provisions in question merely aligned domestic rules with the Guidelines on State aid for environmental protection and energy, and later the Guidelines on State aid for climate, environmental protection and energy, rather than imposing stricter conditions (paragraphs 36-38).
The Court held that an undertaking placed under an extraordinary administration scheme such as that at issue must be regarded as an 'undertaking in difficulty' under point 20(c) of the Guidelines, since that scheme is a 'collective procedure' applicable to insolvent undertakings under Article 1 of Legislative Decree No 270/1999, and admission to it is conditional on a prior judicial declaration of insolvency under Articles 3 and 27 of that decree and Articles 1, 2 and 4 of Decree-Law No 347/2003 (paragraph 40).
It was irrelevant that the extraordinary administration scheme pursues the objective of restoring the viability of the undertaking, since the Guidelines themselves aim at enabling rescue or restructuring and restoration of viability; that objective does not remove the undertaking from the concept of 'undertaking in difficulty' (paragraph 41). The Court also noted that extraordinary administration is expressly classified as 'insolvency proceedings' under Annex A to Regulation (EU) 2015/848 (paragraph 42).
The Court rejected the argument that it would be illogical to deprive an undertaking seeking rescue of energy aid it previously received, finding this conflated energy aid with rescue and restructuring aid; per point 23 of the Guidelines, an undertaking in difficulty cannot be an appropriate vehicle for other public policy objectives until its viability is assured (paragraph 43). The judgment in Federatie Nederlandse Vakbeweging (Pre-pack procedure) was found not to call this interpretation into question, as it concerned Directive 2001/23/EC pursuing objectives unrelated to State aid law (paragraph 44).
Outcome
The Court ruled that Article 107(3)(c) TFEU, read in conjunction with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, must be interpreted as not precluding national legislation which excludes undertakings placed under the extraordinary administration scheme from access to benefits provided under national law for undertakings with high consumption of natural gas or electricity, on the ground that they fall within the concept of 'undertaking in difficulty' under point 20 of those Guidelines, since admission to that scheme is conditional upon the insolvency of those undertakings (paragraph 45 and operative part).
Costs were left to be determined by the national court, as the proceedings before the Court of Justice constituted a step in the action pending before it (paragraph 46).
Major issues / areas of contention
- Whether the requests for a preliminary ruling were admissible, given the Italian Government's objection that they lacked adequate reasoning and concerned purely domestic law matters.
- Whether an undertaking placed under the Italian extraordinary administration scheme falls within the concept of 'undertaking in difficulty' under point 20(c) of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty.
- Whether national legislation excluding such undertakings from energy consumption aid schemes imposes stricter conditions than EU law requires, or merely aligns with Commission Guidelines.
- Whether the rescue-oriented objective of the extraordinary administration scheme affects its classification as giving rise to 'undertakings in difficulty'.
- Whether classification of extraordinary administration as insolvency proceedings under Annex A to Regulation (EU) 2015/848 supports treating undertakings under that scheme as undertakings in difficulty.
- Whether excluding an undertaking seeking rescue from energy aid, thereby potentially aggravating its financial difficulties, is inconsistent with the purpose of the extraordinary administration scheme.