Executive Summary:
- Member States may define stricter eligibility criteria than those laid down in Commission decisions or block exemption regulations.
- Member States must exclude from state aid schemes undertakings in extraordinary administration that constitutes collective insolvency proceedings.
- Undertakings in extraordinary administration may qualify for state aid in compliance with the guidelines on rescue & restructuring.
Table of Contents:
- Introduction
- Background to the dispute
- May Member States define extra eligibility conditions for state aid?
- Undertaking in difficulty
- Conclusions
Introduction
A question that is often asked by undertakings whose aid applications are rejected is whether Member States may attach eligibility criteria to their state aid schemes that go beyond those defined in Commission decisions or block exemption regulations. As recently reiterated by the Court of Justice of the EU [CJEU], the answer is in the affirmative.
In its judgment of 24 September 2026, in joined cases C‑503/25 and C‑504/25, Acciaierie d’Italia v Cassa per i servizi energetici e ambientali (CSEA), the CJEU also clarified that even though the purpose of placing an undertaking under administration is to enable it to become viable again, it does not follow that it is should not be classified as an undertaking in difficulty in the meaning of the guidelines on rescue and restructuring aid.[1] This is because the aim of those guidelines is also to enable undertakings to become viable again through, however, appropriate restructuring. Therefore, they must be excluded from state aid measures which do not require prior restructuring.
The judgment of the CJEU was in response to a request for a preliminary ruling by an Italian court concern the interpretation of Article 107(3)(c) TFEU and the guidelines on state aid for rescuing and restructuring undertakings in difficulty.
Background to the dispute
Acciaierie d’Italia [ADI], an Italian company under administration, had initiated court proceedings against Cassa per i servizi energetici e ambientali [CSEA], the Italian Energy and Environmental Services Fund, concerning the rejection by CSEA of ADI’s application for aid provided by national law for undertakings with high consumption of natural gas or electricity.
ADI applied to CSEA in November 2024 requesting that be included on the list of undertakings with high electricity consumption and high gas consumption for 2025, in order to be able to receive the aid provided by the relevant Italian decree. In December 2024, CSEA rejected ADI’s applications on the grounds that since ADI was in extraordinary administration, it was an “undertaking in difficulty” within the meaning of point 20(c) of the R&R guidelines.
The referring Italian court noted that the concept of “undertaking in difficulty” refers to undertakings which, without state intervention, would eventually go bankrupt. It asked whether an undertaking placed under extraordinary administration fell within that concept. It pointed out that the purpose of the administration was to preserve the continuity of the undertaking and enable it to relaunch in order to avoid bankruptcy.
After ruling that the request was admissible, the Court of Justice of the EU [CJEU] phrased the questions of the referring court as follows: Must “(33) Article 107(3)(c) TFEU, read in conjunction with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, … be interpreted as precluding national legislation which provides for the exclusion of undertakings placed under the extraordinary administration scheme from access to the advantages provided for by national law for undertakings with high consumption of natural gas or electricity on the ground that they fall within the concept of an ‘undertaking in difficulty’, within the meaning of point 20 of those guidelines?”
May Member States define extra eligibility conditions for state aid?
First, the CJEU recalled the role of Commission guidelines.
“(35) By adopting the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, the Commission limits the exercise of its discretion as to the compatibility of State aid under Article 107(3)(c) TFEU. The Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty define the conditions under which State aid for rescuing and restructuring non-financial undertakings in difficulty may be considered by the Commission to be compatible with the internal market on the basis of Article 107(3)(c) TFEU. Accordingly, the Commission cannot, in principle, depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations … In that sense, the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty form part of the legal framework to be interpreted by the Court of Justice in order to answer the referring court’s questions.”
Then, the CJEU made an important clarification on an issue that is often raised by undertakings whose aid applications are refused. “(36) It should also be noted that EU law does not in principle preclude national legislation which makes access to State aid subject to stricter conditions than EU rules”.
At this point the CJEU cited case C-481/17, Yanchev which concerned exclusion from a Bulgarian aid scheme, already approved by the Commission, of undertakings that owed taxes. In that case the CJEU noted that it was irrelevant that the Commission decision made no mention of that condition.
“(37) In the present case, as regards the conditions for access to the advantages provided for by national law for undertakings with high consumption of natural gas or electricity, it is apparent from the relevant legislation, …, that that legislation expressly excludes undertakings in difficulty, within the meaning of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, from access to those advantages”.
“(38) By those exclusions, the Italian Republic did not lay down stricter conditions for access than those required by EU law on State aid, but merely aligned its rules in the field of State aid for energy with the requirements contained in the Guidelines on State aid for environmental protection and energy, and then in the Guidelines on State aid for climate, environmental protection and energy which replaced them, points 16 and 14 of which, respectively, set out, in essence, the Commission’s position that such aid cannot be granted to ‘undertakings in difficulty’ within the meaning of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty.”
Undertaking in difficulty
Next, the CJEU analysed the meaning of undertaking in difficulty.
“(39) As regards the concept of ‘undertaking in difficulty’ within the meaning of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, point 20 of those guidelines states that an undertaking falls within that concept where it is practically certain that, in the absence of State intervention, it will be forced to abandon its activities in the short or medium term, which is the case, in particular, as set out in point (c) thereof, ‘where the undertaking is subject to collective insolvency proceedings or fulfils the criteria under its domestic law for being placed under the collective insolvency procedure at the request of its creditors.’”
“(40) It follows that an undertaking which is placed under an extraordinary administration scheme, such as that provided for by the Italian legislation at issue in the main proceedings, must be regarded as falling within the concept of an ‘undertaking in difficulty’ within the meaning of point 20 of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty. That scheme constitutes, according to the very wording of Article 1 of Legislative Decree No 270/1999, a ‘collective procedure’ applicable to ‘undertakings in a state of insolvency’ and admission to that scheme also appears, in the light of the wording of Articles 3 and 27 of that legislative decree and Articles 1, 2 and 4 of Decree-Law No 347/2003, which it is for the referring court to ascertain, to be subject to a prior declaration, by decision of the court having jurisdiction, of insolvency on the part of the undertaking concerned.”
The CJEU cleared the misconception of the referring court concerning the aim of placing an undertaking under administration and, at the same time, classifying it as an undertaking in difficulty.
“(41) It is irrelevant, in that regard, that the extraordinary administration scheme at issue in the main proceedings pursues the objective of ensuring the return to viability of the undertaking concerned. The objective of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty themselves is, as is stated, moreover, in their title and point 1 thereof, to enable, as far as possible in the context of Article 107 TFEU, the ‘rescue or restructuring’ of undertakings in difficulty, and therefore the restoration of their economic viability. Therefore, the fact that the collective insolvency proceedings provided for by the laws of the Member States pursue an objective of restoring the economic viability of the undertakings subject to them in no way calls into question the fact that those undertakings fall within the concept of ‘undertaking in difficulty’ within the meaning of point 20 of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty.”
“(42) Moreover, it should be noted that extraordinary administration is expressly classified as ‘insolvency proceedings’ in Annex A to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p.19).”
Then, the CJEU distinguished between the aim of restructuring aid and the aims of other kinds of aid.
“(43) Nor is the interpretation set out in paragraph 40 of the present judgment called into question by the argument put forward by ADI and the Italian Government that, in essence, it would be illogical for an undertaking in difficulty which benefits from a protective scheme designed to restore its economic viability, in this case the extraordinary administration scheme, to find itself, for that reason alone, deprived of certain aid from which it previously benefited, in this case the advantages granted to undertakings with high consumption of natural gas or electricity, thus aggravating further the financial difficulties it encounters. That line of argument is the result of confusion, since it ultimately amounts to treating the energy aid at issue in the main proceedings as aid for restructuring and rescue. As is apparent from point 23 of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, an undertaking in difficulty cannot be considered to be an appropriate vehicle for promoting other public policy objectives until such time as its viability is assured. Thus, the Commission states, in point 23 of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, that aid to undertakings in difficulty can contribute to the development of economic activities without adversely affecting trading conditions to an extent contrary to the common interest only if the conditions laid down in those guidelines are met.
Conclusions
On the basis of the above reasoning, the CJEU ruled that “(45) the answer to the question referred in each of the joined cases is 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 provides for the exclusion of undertakings placed under the extraordinary administration scheme from access to the benefits provided for under national law for undertakings with high consumption of natural gas or electricity, on the ground that they fall within the concept of an ‘undertaking in difficulty’, within the meaning of point 20 of those guidelines, since admission to that scheme is conditional upon the insolvency of those undertakings.”
[1] The full text of the judgment can be accessed at:
