The Italian Supreme Court decides, following a preliminary reference to the EU Court of Justice, that aid which predated EU market liberalisation can constitute new State aid (Fallimento Traghetti del Mediterraneo)

On 16 October 2020, the Supreme Court delivered Decision No. 22631 in a case concerning alleged aid granted by the Italian Government to a company operating in the maritime cabotage sector. Background & facts of the case In 1981, Fallimento Traghetti del Mediterraneo S.p.A. (“TDM”) brought a damages action against its competitor Tirrenia Navigazione S.p.A. According to TDM, its competitor engaged in unfair competition. Indeed, TDM submitted that Tirrenia Navigazione had engaged in predatory pricing in the period 1976-1980, when the market had yet to be liberalised. TDM claimed that Tirrenia Navigazione benefitted from State aid granted through Law 684/1974. TDM’s claims were rejected in the first-instance proceedings and on appeal. Subsequently,