About the effects of a decision concerning a State aid scheme on its material beneficiaries and the need of verifying, in each case, if trade between the member States is affected and if there is a distortion of competition

The article comments on the judgement of the European Court of Justice of 29 July 2019, case C659/17, Istituto Nazionale della Previdenza Sociale (inps) v. Azienda Napoletana Mobilità (anm) spa. In that judgement the Court of Justice confirmed and clarified, that when a National authority executes a Commission Decision, which declares a State ‘aid scheme’ already granted to be incompatible with the internal market, and orders its recovery, it must appreciate its single measure of application. More specifically it stated that only in so far as that those measures are capable of altering trade between Member States and of distorting competition must they be recovered. The Court also confirms that a State aid given in favour of a sector which is de jure closed to competition is unable to alter trade between Member States and to distort competition, and must be considered fully legal. On the contrary, if the concerned sector is only de facto closed to competition, as in the case of regional transport services which were assigned through a direct award (while a competitive tender procedure could have been organised), any given aid can alter trade between Member States and distort competition and so must be recovered by the competent authorities