I imagine what I want to write in my case, I write it in the search engine and I get exactly what I wanted. Thank you!
Valentina R., lawyer
(Reference for a preliminary ruling from the Tribunale ordinario di Nocera Inferiore)
State aid – Prohibited – Derogations – Aid which may be considered compatible with the common market
In order to determine whether there has been an increase in employment, the guidelines on aid to employment, under which employment aid intended for the recruitment of additional workers to a company may be declared compatible with the common market, should be interpreted as meaning that the average number of annual working units for the year preceding recruitment should be compared with the average number of annual working units for the year following such recruitment.
Those guidelines should be interpreted in close conjunction with the guidelines on national regional aid, since the notion of job creation is common to both sets of guidelines, which in essence define that notion by referring, at points 17 and 4.12 of the respective texts, to the net increase in the number of jobs compared with an average over a period of time.
The guidelines on national regional aid define more precisely the second term to be used in comparing an undertaking’s workforce in order to ascertain that there has indeed been a net increase in employees in relation to an average over a period of time. First, at point 4.12, they specify that job creation means a net increase in the number of jobs in a particular establishment compared with the average over a period of time, and that any jobs lost during that period must therefore be deducted from the apparent number of jobs created during the same period. Second, the guidelines state, at footnote 33, that the number of jobs corresponds to the number of annual labour units, that is to say the number of persons employed full-time in one year, part-time and seasonal work being annual labour unit fractions.
It follows that, according to the guidelines on national regional aid, job creation means the net increase in the number of persons employed full-time in one year (part-time and seasonal work being annual labour unit fractions) in an establishment compared with the average over a period of time. Accordingly, under those guidelines, the second term in the comparison of the number of employees at the given time is therefore established not by the number of employees of an undertaking on the day of recruitment, but rather by the number of employees calculated in terms of annual labour units over the period of a year.
(see paras 23, 25-27, 32, operative part)
In Case C‑415/07,
REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale ordinario di Nocera Inferiore (Italy), made by decision of 20 July 2007, received at the Court on 10 September 2007, in the proceedings
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of Chamber, K. Schiemann, P. Kūris (Rapporteur), L. Bay Larsen and C. Toader, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 21 October 2008,
after considering the observations submitted on behalf of:
–the Istituto nazionale della previdenza sociale (INPS) and SCCI, by A. Sgroi, F. Correra and A. Coretti, avvocati,
–the Italian Government, by I.M. Braguglia, acting as Agent, and by W. Ferrante, avvocato dello Stato,
–the Commission of the European Communities, by G. Conte and E. Righini, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 27 November 2008,
gives the following
This reference for a preliminary ruling concerns the interpretation of the guidelines on aid to employment (OJ 1995 C 334, p. 4), the guidelines on national regional aid (OJ 1998 C 74, p. 9) and also Commission Regulation (EC) No 2204/2002 of 12 December 2002 on the application of Articles 87 and 88 of the EC Treaty to State aid for employment (OJ 2002 L 337, p. 3).
The reference was made in the course of proceedings brought by Lodato Gennaro & C. SpA (‘Lodato’) against a notice of assessment issued by the Istituto nazionale della previdenza sociale (INPS) (National social welfare institution) further to a report drawn up by the INPS.
Recitals 7 to 9 of Directive 2011/92 state:
‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …
(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.
(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’
Article 2(1) of that directive provides:
‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’
Under Article 3(1) of that directive:
‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:
…
(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];
…’
Article 4 of Directive 2011/92 provides:
‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
(a) a case-by-case examination;
(b) thresholds or criteria set by the Member State.
Member States may decide to apply both procedures referred to in points (a) and (b).
Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.
Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:
(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or
(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’
Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:
‘1. A description of the project, including in particular:
(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;
(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.
3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:
(a) the expected residues and emissions and the production of waste, where relevant;
(b) the use of natural resources, in particular soil, land, water and biodiversity.
Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.
Recitals 11 and 29 of Directive 2014/52 state:
‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]
…
(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’
Article 6(3) of Directive 92/43 provides:
‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’
Article 12(1) of that directive provides:
‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:
(a) all forms of deliberate capture or killing of specimens of these species in the wild;
(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;
(c) deliberate destruction or taking of eggs from the wild;
(d) deterioration or destruction of breeding sites or resting places.’
Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.
must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.
Gratsias
Passer
Smulders
Delivered in open court in Luxembourg on 6 March 2025.
Registrar
President of the Chamber
ECLI:EU:C:2025:140
Lodato is an undertaking in the canned food sector, whose main activity is the processing and canning of tomatoes in the Campania region. At the present time, its business experiences a seasonal peak each year, from July to October, causing it to recruit seasonal workers during that period. Lodato benefited from both aid schemes at issue in the main proceedings, as a result of the recruitment of seven workers under the first scheme and two additional workers under the second.
18Since they considered that not all of the workers recruited resulted in an increase in Lodato’s workforce, on 21 November 2005 the INPS inspectors compiled the report forming the basis of the notice of assessment which is the subject of the action pending before the national court.
19It is apparent from the order for reference that, in support of its action, Lodato submits in particular that, in order to check whether the requirement to increase the number of employees had been satisfied, the INPS had compared the average AWU for the year preceding the recruitment with the total number of employees as at the date of recruitment, and had thus failed to make a comparison on like terms, instead of comparing the average AWU for the year preceding the recruitment with the average AWU for the year following such recruitment.
20In its decision, the national court is uncertain as to how the Community legislation is to be interpreted in relation to the second term in the comparison of the number of employees that must be used in order to ascertain that the requirement to increase the number of employees has been satisfied. It considers, first, that the method used by the INPS is illogical and discriminates against undertakings carrying out seasonal work, and, second, that a ‘comparison between the AWU [figure] for the year preceding the employment of new workers and the AWU for the following year is more consistent with the underlying purpose of the aid, which is to promote the creation of new employment for a specified period’.
However, since it considers there to be doubt as to the exact interpretation of the Community legislation in that regard, the Tribunale ordinario di Nocera Inferiore (District Court, Nocera Inferiore) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is the Community law laid down in the guidelines on aid to employment, the guidelines on national regional aid and … Regulation No 2204/2002 … to be interpreted as meaning that, in order to determine whether there has been an increase in employment, a comparison must be made between the average AWU for the year preceding the recruitment of new workers and the average AWU for the year following their recruitment, or are those provisions to be interpreted instead as meaning that a comparison must – or may – be made between the average AWU for the year preceding the recruitment of new workers and the exact number of workers present in the undertaking on the specific day on which those new workers were recruited?’
22First of all, it must be pointed out that the Commission’s decisions authorising the aid schemes at issue in the main proceedings refer to both the guidelines on aid to employment and the guidelines on national regional aid but not to Regulation No 2204/2002, since that regulation was adopted after the decisions. It follows that there is no need to interpret that regulation in the present case.
23Second, it should be recalled that the proceedings before the national court relate to aid for the creation of jobs not linked to an investment project and which the Commission scrutinised in the light of the guidelines on aid to employment. Even though the question referred for a preliminary ruling in fact concerns only the interpretation of the guidelines on aid to employment, these should be interpreted in close conjunction with the guidelines on national regional aid, since the notion of job creation is common to both sets of guidelines, which in essence define job creation by referring, at points 17 and 4.12 of the respective texts, to the net increase in the number of jobs compared with an average over a period of time.
24Third, it must be pointed out that the Commission’s decisions of 10 August 1999 and 6 December 2002 regarded both of the aid schemes at issue in the main proceedings, as notified to the Commission and supplemented by information subsequently provided by the national authorities, as compatible with the common market. In addition, as regards the formula that must be used to calculate the increase in the number of jobs, the decision of 10 August 1999 refers specifically to footnote 8 to point 3.2 of the Community guidelines on State aid for small and medium-sized enterprises, while the decision of 6 December 2002 contains an equally specific reference to the essentially identical formula at footnote 33 of point 4.12 of the guidelines on national regional aid.
25In so far as the question referred for a preliminary ruling concerns the second term to be used in comparing an undertaking’s workforce in order to verify that there has indeed been a net increase in employees in relation to an average over a period of time, it must be pointed out that no precise details in that regard are provided by either the text of point 17 of the guidelines on aid to employment or indeed that of Article 4(6)(b) of Regulation No 70/2001, which formed the basis of the Commission’s decision of 6 December 2002 on the second aid scheme at issue in the main proceedings.
26By contrast, the guidelines on national regional aid define the second term of comparison more precisely. First, at point 4.12, they specify that job creation means a net increase in the number of jobs in a particular establishment compared with the average over a period of time, and that any jobs lost during that period must therefore be deducted from the apparent number of jobs created during the same period. Second, the guidelines state, at footnote 33, that the number of jobs corresponds to the number of annual labour units (ALU), that is to say the number of persons employed full-time in one year, part-time and seasonal work being ALU fractions.
27It follows that, according to the guidelines on national regional aid, job creation means the net increase in the number of persons employed full-time in one year (part-time and seasonal work being ALU fractions) in an establishment compared with the average over a period of time. Accordingly, under those guidelines, the second term in the comparison of the number of employees at the given time is therefore established not by the number of employees of an undertaking on the day of recruitment, but rather by the number of employees calculated in terms of ALU over the period of a year.
28Furthermore, it must be pointed out that that definition of the second term of the comparison of the number of employees is also the same as subsequently used in Article 4(4)(a) of Regulation No 2204/2002, read in conjunction with Article 2(e) of that regulation, and also at point 58 of the guidelines on national regional aid for 2007-2013.
29From examining the different provisions it can be seen that the Commission has gradually clarified the method for calculating the net increase of the number of jobs or employees. As a result of such clarification, the second term in the comparison of the number of employees of an undertaking at the given time is also an AWU figure like the first term in the comparison, and therefore that both terms in that comparison correspond to a period of one year.
30Thus, that method of calculating an increase in the number of jobs or employees is based on the comparison of similar data, and enables the effort invested over time in job creation by the undertaking receiving aid to be measured, whereas the method that involves comparing the average AWU for the year preceding recruitment with the specific figure for the number of employees on the day of recruitment would have a more uncertain effect in that regard, since that figure is more affected by seasonal variations and therefore less representative of the undertaking’s true employment position.
31The first method of calculation is also consistent with an intention to promote job stability and permanence, expressed in particular at the third indent of point 21 of the guidelines on aid to employment, and is also reflected in the obligation, set out in the guidelines that have been discussed, to maintain the newly-created jobs for a minimum period. For that reason, the method does not discriminate against undertakings whose business is seasonal, since seasonal employment is also included as a fraction of AWU in the second term of the comparison which is used in order to check that the requirement of a net increase in employment is satisfied. As the Advocate General has in essence noted in points 51 to 71 of his Opinion, unequal treatment between those undertakings and others would not be justified, given that they are subject to the same obligation to maintain newly-created jobs for a minimum period in order to receive aid.
32In light of the above considerations, the answer to the question referred is that, in order to determine whether there has been an increase in employment, the guidelines on aid to employment should be interpreted as meaning that the average AWU for the year preceding recruitment should be compared with the average AWU for the year following that recruitment.
33Since 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 (Second Chamber) hereby rules:
In order to determine whether there has been an increase in employment, the guidelines on aid to employment should be interpreted as meaning that the average number of annual working units for the year preceding recruitment should be compared with the average number of annual working units for the year following such recruitment.
[Signatures]
*
Language of the case: Italian.