This Final Study is the result of the ‘Study on the enforcement of State aid
rules and decisions by national courts (COMP/2018/001)’ (the ‘Study’), carried
out for DG Competition of the European Commission by Spark Legal Network, the
European University Institute, Ecorys and Caselex, with the support of a network of
national legal experts. The Study offers a comprehensive overview of the enforcement
of State aid rules by national courts of the 28 Member States, identifying emerging
trends and challenges and presenting best practices. It also provides insights on the
use of cooperation tools by the Commission and national courts. In order to meet the
objectives of the Study, the following tasks were carried out: Task 1 – Identify,
classify and summarise the most relevant rulings rendered by national courts on State
aid matters; Task 2 – Summary of the main findings at EU level; Task 3 – Identification
of best practices; and Task 4 – Use of the cooperation tools by the Commission and the
national courts. The Study includes 145 case summaries and 28 country reports in its
annexes which are publicly available on a dedicated project website, including a
user-friendly Case Database.
Introduction
This document comprises the Final Study for the ‘Study on the enforcement of State aid rules and decisions by national courts (COMP/2018/001)’ (the ‘Study’), carried out for DG Competition of the European Commission (the ‘Commission’) by Spark Legal Network (the ‘Data Collection Team’), the European University Institute (the ‘State Aid Team’; Spark Legal Network and the European University Institute are together referred to as: the ‘Study Team’), Ecorys (the ‘Cooperation Tools Team’) and Caselex (the ‘Editorial Team’) (together: the ‘Consortium’). The Consortium was supported by a network of national legal experts who were responsible for legal data collection and analysis on the enforcement of State aid rules at national level, producing case summaries and country reports.
The Study comprises four chapters. Chapter 1 includes the legal context, the objectives and the methodology of the Study. Chapter 2 presents a summary and analysis of State aid enforcement by national courts across the European Union (‘EU’), including the main trends with regard to the enforcement of EU State aid rules by national courts. Chapter 3 provides best practices in State aid enforcement by national courts across the EU. Chapter 4 focuses on the findings with regard to the use of cooperation tools by the Commission and national courts in relation to State aid cases. The Study includes four annexes that contain the details of the methodology and the results of the data collection.
Legal context
Under Article 107(1) of the Treaty on the Functioning of the European Union (‘TFEU’), State aid granted by Member States of the European Union (‘Member States’) is prohibited. Under Article 108(3) TFEU, Member States must notify to the Commission any plan to grant new aid which fulfils the conditions under Article 107(1) TFEU. In addition, Member States are subject to a standstill obligation, whereby they cannot implement the aid measure before the Commission has completed the compatibility assessment of the notified aid. The Commission has the exclusive competence to assess whether an aid prohibited under Article 107(1) TFEU is or may be considered compatible with the internal market.
Under Article 107(1) of the Treaty on the Functioning of the European Union (‘TFEU’), State aid granted by Member States of the European Union (‘Member States’) is prohibited. Under Article 108(3) TFEU, Member States must notify to the Commission any plan to grant new aid which fulfils the conditions under Article 107(1) TFEU. In addition, Member States are subject to a standstill obligation, whereby they cannot implement the aid measure before the Commission has completed the compatibility assessment of the notified aid. The Commission has the exclusive competence to assess whether an aid prohibited under Article 107(1) TFEU is or may be considered compatible with the internal market.
- Implementation of recovery decisions (i.e. public enforcement of State aid rules): once the Commission adopts a recovery decision (ordering a Member State to recover an incompatible aid previously implemented in breach of the standstill obligation), the national courts will be involved in the recovery proceedings.
- Enforcement of Article 108(3) TFEU (i.e. private enforcement of State aid rules): interested third parties can start an action in a national court in view of the direct effect of the standstill obligation under Article 108(3) TFEU. In particular, competitors can ask for the recovery of the aid implemented in breach of the standstill obligation (i.e. unlawful aid), independently of the compatibility assessment carried out by the Commission. Finally, competitors can also start damages actions. In the context of private enforcement, national courts rule on whether the challenged measure fulfils the conditions to be considered State aid under Article 107(1) TFEU, thus representing unlawful aid, since it has not been notified to the Commission.
Objectives and methodology
The objective of the Study was to provide the state of play of State aid enforcement by national courts in the EU. It therefore offers a comprehensive overview of the enforcement of State aid rules by national courts of the 28 Member States, identifying emerging trends and challenges, and presenting best practices. The Study looks at national enforcement cases, which were decided between 1 January 2007 and 31 December 2017, and includes important cases decided in 2018 (also referred to as: the ‘Study Period’). It also provides insights on the use of cooperation tools by the Commission and national courts. In order to meet the objectives of the Study, the following tasks were carried out:
- Task 1 – Identify, classify and summarise the most relevant rulings rendered by national courts on State aid matters
- Task 2 – Summary of the main findings at EU level
- Task 3 – Identification of best practices
- Task 4 – Use of the cooperation tools by the Commission and the national courts
In Task 1, the Study Team, in cooperation with the national legal experts, identified and compiled a list of relevant rulings adopted by national courts in the Member States in the Study Period (the full list of relevant rulings can be found in Annex 2). Such rulings have been identified in all but one Member State, i.e. Luxembourg. From the list of relevant rulings, the Study Team and the national legal experts selected a sample of rulings on the basis of their legal relevance and novelty within the respective Member States and at EU level (‘selected rulings’). Subsequently, the national legal experts drafted case summaries of the selected rulings, on the basis of a template created by the Study Team. They also created country reports for each Member State, again following a template, providing general conclusions on the state of play of State aid rules at national level (the country reports, including the selected rulings and the case summaries can be found in Annex 3). Additionally, during Task 1, the Editorial Team developed a project website and a Case Database. The project website is publicly available and contains the results presented in the Final Study, as well as a Case Database, and will be kept accessible for at least two years after publication of the Study. The Case Database comprises the 145 case summaries produced under this Study and offers visitors a broad range of search options to find and read the case summaries in a user-friendly way.
The execution of Task 1 formed the basis of Tasks 2 and 3 which were both undertaken by the State Aid Team (supported by the Data Collection Team). Task 2 consisted of analysing and summarising the main findings with regard to the enforcement of EU State aid rules by national courts across the EU, in particular on the basis of the list of 766 relevant rulings, the 145 case summaries and 28 country reports produced under Task 1. The analysis covered both public and private enforcement of State aid rules and consisted of the elaboration of a number of statistics, as well as the identification of a number of qualitative trends, and a comparison with earlier relevant research. The objective of Task 3 was to identify a number of best practices in relation to the enforcement of State aid by the national courts of the Member States. In order to identify best practices, the State Aid Team developed a set of indicators to assess how a given jurisdiction performs: a) the speed with which cases are likely to be resolved as a result of the practice; b) the quality of coordination with parallel Commission procedures; c) the degree to which the remedies provide for adequate compensation; and d) the tools used for judicial dialogue. In the assessment, the State Aid Team looked not only at the practice, but also at the context in which it takes place (i.e. the relevant national judicial framework).
The objective of Task 4, carried out by the Cooperation Tools Team, was to undertake research, gathering knowledge of the use of and views on the cooperation tools provided for in Article 29 of the State aid Procedural Regulation. In order to fulfil the research objectives for Task 4, various data collection methods were employed: desk research (using data available within the Commission), interviews with Commission staff, an online questionnaire addressed to judges at relevant courts (105 respondents, of which 78 were relevant to the Study), and interviews with several judges across the EU (27 interviews).
State aid enforcement by national courts
In Chapter 2, the Consortium identifies a number of trends concerning public and private enforcement of State aid rules by national courts of the Member States. While public enforcement refers to disputes in national courts concerning recovery orders, private enforcement refers to court disputes arising from breaches of the standstill obligation under Article 108(3) TFEU.
The first trend identified in Chapter 2 concerns the overall increase in the number of judgments handed down by national courts during the period covered by the Study. A second trend concerns the increase in private enforcement cases, which have exceeded the number of public enforcement rulings. The Consortium has identified 172 cases of public enforcement of State aid rules and 594 private enforcement cases, thus making the number of private enforcement cases more than triple the number of public enforcement cases. The increase in the number and size of State aid measures put in place by Member States in the aftermath of the 2008 financial crisis may have contributed to the substantial increase in the number of private enforcement cases in the first half of the 2010s.
Despite the increase of court litigation, national courts have rarely concluded that unlawful aid has been granted and hence rarely awarded remedies. In 32% of the identified cases of public enforcement and in 66% of the identified cases of private enforcement, the national court rejected the claim. In public enforcement, this can be considered as a positive trend: it shows that national recovery orders are rarely successfully challenged in national courts. In particular, it is worth noting that only in five cases did the national courts adopt interim measures to suspend the enforcement of the recovery order (i.e. 2% of the public enforcement cases identified in the Study). Consequently, it appears that Commission decisions are enforced by national authorities without facing the risk of lengthy national litigation, which might delay the effective aid recovery.
On the other hand, the low number of remedies awarded by national courts in the identified private enforcement cases calls for further reflection. National courts rarely either order the recovery of the unlawful aid or adopt interim measures to suspend the implementation of the aid measure. This trend is particularly evident in relation to damages claims: only in six of the identified relevant rulings did national courts award compensation due to the harm caused by a breach of the standstill obligation by a Member State (i.e. less than 1% of the private enforcement cases identified in the Study). The country reports reveal a number of reasons which may explain why national courts rarely award remedies in private enforcement cases. Firstly, besides the lack of familiarity with State aid rules among national courts, a number of national legal experts report that the claimants do not usually put forward well-structured arguments to support their claims. Secondly, it appears that national courts face difficulties in verifying the conditions concerning the notion of aid under Article 107(1) TFEU, under the GBER, as well as applying the CJEU case law in relation to Altmark and Market Economic Operator Principle (MEOP). Thirdly, a number of national reports stress that State aid claims often require national courts to assess the legality of the measure under different areas of law (e.g. tax, administrative, contract law); the interaction of different legal regimes makes the evaluation of the measure under State aid rules more complex. Fourthly, a number of national reports point out that national courts are often reluctant to order the recovery of the unlawful aid while the case is awaiting a compatibility assessment by the Commission. Finally, a State aid claim generally implies a rather high burden of proof for the claimant, especially in damages claims. In the latter category of cases, the plaintiff must prove that the challenged measure represents an unlawful aid not previously notified to the Commission and that the aid measure caused damage to the claimant. The breach of the standstill obligation may cause either a loss of profits and/or a loss of market share for the competitors of the aid beneficiary. In both cases, it can be quite challenging for the claimant to estimate the damage suffered during the entire period that the unlawful aid was in operation. In fact, exogenous factors may have an impact on the profits and market share of the claimant.
The increased familiarity of national judges with State aid rules may improve via the organisation of training programmes and advocacy activities organised by the Commission and national authorities. On the other hand, the number of successful damages claims might increase if national courts were to receive ‘further guidance’ in relation to the economic techniques concerning damages estimation in State aid cases. In this regard, it is worth noting that in 2013 the Commission published a Practical Guide, summarising the economic techniques concerning damages estimation in cases of private enforcement of EU competition rules. This Practical Guide is a non-binding document, which specifically targets national courts and explains to national judges the steps followed by economists to quantify damages in a EU competition law cases in simple and accessible language. National judges increasingly rely on the Practical Guide, which is considered a useful framework to assess the reliability of the damage estimation put forward by the experts hired by the parties. The Consortium considers that such guidance can be seen as a positive example. It might even be contended that, if applied to State aid enforcement, it might increase the number of successful damages claims in national courts, thus supporting a growth in the number of cases of private enforcement of State aid rules.
Best Practices in State aid enforcement
The trends identified in Chapter 2 suggest that State aid enforcement at national level is becoming more effective in most Member States. The best practices presented in Chapter 3 reveal that certain Member States are aware that amending national procedures may be vital to making State aid enforcement more effective. Many of these practices are designed to embed a ‘culture’ of enforcement of State aid rules among the national stakeholders (i.e. granting authorities, beneficiaries and third parties).
The Consortium has based its indicators for best practices on the information gathered from the country reports and case summaries identified in this Study. The best practices that the Consortium has subsequently discerned mainly concern national procedural rules and judicial practices which can contribute to reducing the length of the aid recovery proceedings after a Commission decision. In particular, the Consortium has identified seven best practices, divided in three categories:
- Best practices related to recovery: specific legislation, recovery instructions in State aid instruments and national penalties for delays in recovery;
- Best practices concerning national screening mechanisms: ex-ante (i.e. non-binding compatibility assessment with State aid rules) and ex-post mechanisms (i.e. State aid assessment as part of the decision-making process of the administrative authority);
- Best institutional practices: rules clarifying the court jurisdiction in State aid disputes and the principle of investigation, according to which a court must ascertain the facts of the case on its own initiative and provide the parties with an explanation about the proceedings and the legal formalities.
In recent years, a number of Member States have adopted specific legal frameworks governing aid recovery. Although these laws broadly differ in terms of scope of application, administrative authorities involved and procedural steps in the recovery process, they represent a best practice in relation to the enforcement of State aid rules at the national level. The adoption of a specific legal framework may increase legal certainty and reduce court litigation, thus ensuring the effective enforcement of recovery decisions. Further best practices identified in relation to aid recovery are the inclusion of instructions about possible recovery proceedings in the administrative act granting the aid, as well as the adoption of internal penalties to sanction the national authorities if they do not enforce the Commission decision in a proper and timely manner. The latter best practice complements the financial penalties that the CJEU could impose on a Member State in the context of infringement proceedings, due to the lack of enforcement of a recovery decision.
Additionally, the Consortium considers the screening mechanisms introduced in a number of Member States as a best practice. Such mechanisms could work either ex-ante (i.e. a national authority provides a non-binding compatibility assessment to the granting authority, thus anticipating the likely Commission assessment of the aid measure before its notification) or ex-post (i.e. a national authority monitors the compatibility of aid measures already implemented with GBER, de minimis Regulation and the concept of aid, and it can eventually order the recovery of the unlawful aid without a Commission decision). The legality of the ex-post system of control has been recently confirmed by the CJEU in Eesti Pagar, And is in line with the increased relevance of the GBER since State Aid Modernisation. Finally, it is worth pointing out that the ex-ante mechanisms are based on non-binding opinions delivered by national authorities to the granting institution concerning the likely compatibility of the planned aid measure with State aid rules; such non-binding opinions do not replace the Commission’s exclusive competence in carrying out the compatibility assessment under Article 107(2) and 107(3) TFEU and under the provisions adopted pursuant to Articles 93, 106(2), 108(2) and 108(4) TFEU.
At the institutional level, the Study points out as best practices the rules clarifying the jurisdiction of the courts in State aid disputes, as well as the principle of investigation in court proceedings. While the former best practice makes national judges more familiar with State aid rules, the latter aims at supporting the plaintiff in developing a claim in line with the remedies available under State aid rules, thus increasing the number of successful claims in national courts.
While the abovementioned best practices may provide helpful lessons, the principle of national procedural autonomy militates against some of them becoming more generally widespread. On the other hand, a number of the best practices simply create working practices that make State aid monitoring and enforcement smoother, and thus can easily be replicated in different Member States. In other words, the best practices identified in the present Study mostly concern judicial practices that could be easily applied by national courts, rather than requiring legislative intervention. Since the beginning of State Aid Modernisation, the Commission has set up a number of working groups bringing together representatives from both the Member States and the Commission, in order to discuss issues related to State aid enforcement. The Commission could thus establish a working group to facilitate the exchange of best practices among the Member States’ representatives. Within such a working group, the Member States could assist each other, in order to either refine existing policies (i.e. for the Member States that already apply one of the best practices) or in considering how far these practices could improve State aid enforcement in their country (i.e. for Member States that do not have such practices).
Use of the cooperation tools by the Commission and the national courts
Based on the data gathered and the analysis presented in Chapter 4, the Consortium provides a number of key observations, and conclusions on the use of and views on the cooperation tools provided for in Article 29 of the State aid Procedural Regulation. The tools included in Article 29 are the request for information; the request for opinion; and amicus curiae observations.
National courts seem to rely on the cooperation tools on a moderate scale. In the Study Period, the Commission received at least seven requests for information. In that same period, the Commission provided at least 20 amicus curiae observations. Information on the requests for opinion is available since 2009. The Commission provided at least 21 opinions at the request of national courts since that year.
The Consortium has identified two main reasons for the limited use of cooperation tools. First of all, seeking guidance from the Commission regarding State aid-related questions does not seem to be the most likely approach for judges to take. The vast majority of judges prefer to invest time and effort themselves to try to find an answer to the (legal) question at hand. Consultation with fellow judges at the same court is the second most likely action. Furthermore, if the judge cannot find the answer to (legal) question at hand, judges are more likely to seek advice from the CJEU through a request for a preliminary ruling than to approach the Commission.
A second reason for the limited use of cooperation tools seems to relate to a lack of awareness of the existence of the cooperation tools among judges. Around 40% of judges participating in the online questionnaire indicated that they had not heard of any of the cooperation tools before participating in the Study. The judges interviewed confirmed this finding. Several of them also indicated that their fellow judges were not familiar with the tools’ existence. Even judges who are aware of some of the tools, are often not familiar with all of them. This lack of awareness among judges on the existence of cooperation tools may be addressed by initiatives to raise awareness among judges.
Although seeking advice from the Commission does not seem to be the obvious route for judges to take, judges do value the possibility of approaching the Commission. Moreover, the willingness to use the cooperation tools in future cases seems considerable among judges. Feedback from judges who had made use of the cooperation tools, showed that the possibility to communicate in the national language is highly valued by the judges. With regard to the quality of the Commission’s responses, in particular the usefulness of the response in the ongoing court case, judges differ in opinion. Some judges indicated being quite satisfied with the information, while a minority indicated that they did not consider the information obtained to be very helpful. With regard to the procedure, the majority of judges are of the opinion that the procedure is easy and effective. Nevertheless, it does not always seem to be clear to judges which procedure they have to follow.
The main potential endeavours that the Commission could undertake to support the use of cooperation tools include:
- Improving (the accessibility of) practical guidance on the cooperation tools procedures. Potential places where this information would be made available could be, in addition to the website of the Commission (DG Competition), locations that judges typically use for finding legal information, such as the EUR-Lex-website.
- The dissemination of information on and promotion of both State aid rules in general and the cooperation tools in particular, with the aim of increasing overall awareness among national judges. To achieve this, the Commission could introduce an online platform, which offers the opportunity for a judge to look up the required information as well as to ask a question online on a protected platform only accessible by judges.
Introduction
Ce document comprend l’étude finale de « L’Etude sur l’application des règles et l’exécution des décisions en matière d’aides d’Etat par les juridictions nationales (COMP/2018/001) » (ci-après « l’étude »), réalisée pour la DG Concurrence de la Commission Européenne (ci-après « la Commission ») par Spark Legal Network (ci-après « l’équipe de collecte des données »), l’Institut universitaire européen (ci-après « l’équipe des aides d’Etat ») ; Spark Legal Network et l’Institut universitaire européen étant ci-après désignés ensemble : « le groupe d’étude »), Ecorys (« l’équipe des outils de coopération ») et Caselex (« l’équipe éditoriale ») (tous ensemble désignés ci-après par « le consortium »). Le consortium a eu l’appui d’un réseau d’experts juridiques nationaux qui étaient en charge de la collecte des données juridiques et de l’analyse de l’application des règles en matière d’aides d’Etat au niveau national, en soumettant des résumés des affaires ainsi que des rapports par pays.
L’étude comprend quatre chapitres. Le chapitre 1 traite du contexte juridique, des objectifs et de la méthodologie adoptée dans le cadre de l’étude. Le chapitre 2 présente un résumé et une analyse de l’application des aides d’Etat par les juridictions nationales dans toute l’Union européenne (ci-après « UE »), en décelant les principales tendances concernant l’application des règles en matière d’aides d’Etat par les juridictions nationales. Le chapitre 3 fournit une liste de bonnes pratiques en matière d’application d’aides d’Etat par les juridictions nationales de l’UE. Le chapitre 4 est axé autour des conclusions tirées de l’analyse de l’utilisation des outils de coopération par la Commission et les juridictions nationales dans le cadre des affaires liées à des aides d’Etat. L’étude comprend quatre annexes qui détaillent davantage la méthodologie et les résultats liés à la collecte des données.
Le contexte juridique
Selon l’article 107(1) du traité sur le fonctionnement de l’Union européenne (ci-après « TFUE »), les aides d’Etat accordées par les Etats membres sont interdites. Selon l’article 108(3) TFUE, les Etats membres sont dans l’obligation de notifier à la Commission tout projet d’autorisation d’une nouvelle aide qui respecterait les conditions énumérées à l’article 107(1) TFUE. De plus, les Etats membres de l’UE (ci-après « Etats membres ») doivent respecter une obligation de statu quo selon laquelle ils ne peuvent mettre en œuvre une mesure d’aide avant que la Commission n’ait achevé son évaluation de la compatibilité de l’aide notifiée. La Commission est exclusivement compétente pour connaître de la question de savoir si l’aide en l’espèce est interdite selon l’article 107(1) TFUE ou si elle peut être considérée comme compatible avec le marché intérieur.
Selon l’article 263(1) TFUE, la Cour de Justice de l’Union européenne (ci-après « CJUE ») a une compétence exclusive en matière d’examen de la légalité des décisions de la Commission. Par conséquent, les juridictions nationales des Etats membres ne peuvent examiner les décisions de la Commission en matière d’aides d’Etat. Toutefois, ces juridictions nationales sont impliquées dans l’application des règles en matière d’aides d’Etat dans le cadre de deux types de procédure :
- L’exécution des décisions de restitution (dans le cadre de l’application publique des règles en matière d’aides d’Etat) : une fois que la Commission a adopté une décision de restitution (en enjoignant à un Etat membre de restituer l’aide incompatible qui a été adoptée précédemment en violation de l’obligation de statu quo), les juridictions nationales seront impliquées dans la procédure de restitution.
- L’application de l’article 108(3) TFUE (dans le cadre de l’application privée des règles en matière d’aides d’Etat) : les tiers intéressés peuvent entamer une action devant une juridiction nationale compte tenu de l’effet direct de l’obligation de statu quo de l’article 108(3) TFUE. Les concurrents du bénéficiaire de l´aide peuvent notamment demander la restitution de l’aide mise à exécution en violation de l’obligation de statu quo (dite l’aide illégale), indépendamment de l’évaluation de compatibilité réalisée par la Commission. Finalement, les concurrents peuvent introduire des actions en dommages et intérêts. Dans le cadre de l´application privée, les juridictions nationales statuent sur le fait de savoir si la mesure contestée remplit les conditions pour constituer une aide d´Etat conformément à l´article 107(1) TFUE, c’est-à-dire si elle constitue une aide illégale en raison d´une absence de notification à la Commission.
Objectifs et méthodologie
L’objectif de l’étude était de présenter un état des lieux de l’application des aides d’Etat par les juridictions nationales de l’UE. De ce fait, l’étude offre un aperçu global de l’application des règles en matière d’aides d’Etat par les juridictions nationales des 28 Etats membres, en identifiant des nouveaux enjeux et tendances ainsi qu’en présentant des bonnes pratiques. L’étude examine les affaires nationales concernant l’application des règles en matière d’aides d’Etat, qui ont été jugées entre le 1er janvier 2007 et le 31 décembre 2017 et elle inclut des affaires importantes décidées en 2019 (ci-après « la période d’étude »). En outre, l’étude offre un aperçu de l’utilisation des outils de coopération par la Commission et les juridictions nationales. Afin de répondre aux objectifs de l’étude, les tâches suivantes ont été menées :
- Tâche 1 : identifier, classifier et résumer les décisions les plus pertinentes rendues par les juridictions nationales en matière d’aides d’Etat ;
- Tâche 2 : un résumé des principales conclusions au niveau de l’UE ;
- Tâche 3 : L’identification de bonnes pratiques ;
- Tâche 4 : L’utilisation des outils de coopération par la Commission et les juridictions nationales
Au cours de la Tâche 1, le groupe d’étude, en coopération avec les experts juridiques nationaux, a identifié et a compilé une liste des décisions pertinentes rendues par les juridictions nationales des Etats membres au cours de la période d’étude (la liste complète des décisions pertinentes se trouve à l’annexe 2). Ces décisions émanent de l’ensemble des Etats membres à l’exception d’un seul (à savoir le Luxembourg). A partir de la liste des décisions pertinentes, l’équipe d’étude et les experts juridiques nationaux ont sélectionné un échantillon de décisions au niveau des Etats membres et de l’UE sur la base de leur pertinence juridique, et de leur caractère novateur (« décisions sélectionnées »). De façon subséquente, les experts juridiques nationaux ont rédigé les résumés des affaires pour les décisions sélectionnées, sur base d’un modèle créé par l’équipe d’étude. Ils ont également rédigé les rapports par pays pour chaque Etat membre, en se basant également sur un modèle, en fournissant des conclusions générales sur l’état des lieux concernant les règles en matière d’aides d’Etat au niveau national (les rapports par pays, les décisions sélectionnées ainsi que les rapports des affaires peuvent être trouvés à l’annexe 3). De plus, au cours de la mise en œuvre de la tâche 1, l’équipe éditoriale a créé un site internet du projet ainsi qu’une base de données de la jurisprudence. Le site internet du projet est accessible au public et contient les résultats présentés dans l’étude finale, tout comme la base de données de la jurisprudence. Ces derniers seront maintenus accessibles pour deux ans au moins après la fin de l´étude. La base de données de la jurisprudence comprend 145 rapports des affaires rédigés dans le cadre de la présente étude et elle offre aux visiteurs une panoplie d’options de recherche afin de trouver et de lire les rapports des affaires de façon conviviale.
L’exécution de la tâche 1 a servi de base pour les tâches 2 et 3. Ces dernières ont été réalisées par l’équipe d’étude (avec l’appui de l’équipe de collecte des données). La tâche 2 consiste en l’analyse et le résumé des principales conclusions au regard de l’application des règles en matière d’aides d’Etat par les juridictions nationales de l’UE, en se basant notamment sur une liste de 766 décisions pertinentes, de 145 rapports des affaires et de 28 rapports par pays produits sous la tâche 1. L’analyse a porté tant sur l’application publique que privé des règles en matière d’aides d’Etat et a consisté en l’élaboration d’un certain nombre de statistiques, en l’identification d’un nombre de tendances qualitatives ainsi qu’en la comparaison avec des recherches antérieures pertinentes. L’objectif de la tâche 3 a été d’identifier un nombre de bonnes pratiques dans le cadre de l’application des aides d’Etat par les juridictions nationales des Etats membres. Afin d’identifier ces bonnes pratiques, l’équipe des aides d’Etat a créé un ensemble d’indicateurs afin d’évaluer la manière selon laquelle une juridiction donnée réagit : a) la rapidité avec laquelle les affaires pouvant être résolues du fait de la pratique utilisée ; b) la qualité de la coordination avec des procédures parallèles de la Commission ; c) le degré selon lequel les réparations accordées constituent une indemnité adéquate ; et d) les outils utilisés pour le dialogue judiciaire. Dans le cadre de cette évaluation, l’équipe des aides d’Etat ne s’est pas contentée d’étudier la pratique, mais s’est également penchée sur le contexte dans lequel la pratique s’exerce (encore appelé « cadre judiciaire national pertinent »).
L’objectif de la tâche 4, effectuée par l’équipe des outils de coopération, a été de mener une recherche, en rassemblant les connaissances sur l’utilisation et les points de vue sur les outils de coopération énumérés à l’article 29 du règlement de la procédure sur les aides d’Etat. Afin de réaliser les objectifs de recherche de la tâche 4, différentes méthodes de collecte des données ont été employées : recherche documentaire (en utilisant des données à disposition des services de la Commission), entretiens avec le personnel de la Commission, un questionnaire en ligne à l’attention des juges des juridictions pertinentes (105 répondants, dont 78 ont été pertinents pour l’étude), ainsi que les entretiens avec différents juges de l’UE (27 entretiens).
L’application des aides d’Etat par les juridictions nationales
Dans le chapitre 2, le consortium identifie un nombre de tendance concernant l’application publique et privée des règles en matière d’aide d’Etat par les juridictions nationales des Etats membres. Alors que l’application publique se réfère à des litiges dans des juridictions nationales concernant l’obligation de restitution, l’application privée se réfère à un litige devant les juridictions émanant des violations de l’obligation de statu quo de l’article 108(3) TFUE.
La première tendance identifiée dans le chapitre 2 est relative à l’augmentation générale du nombre de décisions rendues par les juridictions nationales au cours de la période faisant l’objet de la présente étude. Une deuxième tendance décelée, concerne l’augmentation des dossiers d’application privée qui ont dépassé le nombre de décisions d’application publique. Le consortium a identifié 172 affaires d’application publique des aides d’Etat et 594 affaires d’application privée, le nombre des affaires d’application privée correspond donc à trois fois le nombre des cas d’application publique. L’augmentation du nombre et de la taille des mesures des aides d’Etat mises en place par les Etats membres au lendemain de la crise financière de 2008 a pu avoir contribué à l’augmentation substantielle du nombre d’affaires d’application privée au cours de la première moitié des années 2010.
Malgré l’augmentation des procédures devant les juridictions, les juridictions nationales ont rarement statué qu´une aide illégale a été attribuée. Par conséquent, elles ont rarement accordé des réparations. Dans 32% des affaires d’application publique identifiées et dans 66% des affaires d’application privée identifiées, les juridictions ont rejeté la demande. En matière d’application publique, cela peut être analysé comme une tendance : en effet, les obligations de restitution nationale réussissent rarement à être contesté devant les juridictions nationales. Il est important de noter que seuls dans cinq affaires les juridictions nationales adoptent des mesures provisoires afin de suspendre l’application de l’obligation de restitution (plus précisément dans 2% des affaires d’application publique identifiées dans l´étude). Par conséquent, les décisions de la Commission sont appliquées par les juridictions nationales sans courir le risque de procédures longues au niveau national qui sont susceptibles de différer la restitution effective de l’aide.
Toutefois, le nombre très faible de réparations accordées par les juridictions nationales dans les cas d’application privée appelle à la réflexion. Les juridictions nationales ordonnent rarement la restitution des aides illégales ou adoptent des mesures provisoires pour suspendre la mise en œuvre des mesures d’aides. Cette tendance est particulièrement manifeste dans le cadre des actions en dommages et intérêts : seules dans six des décisions pertinentes identifiées, les juridictions nationales ont octroyé une indemnisation en raison du préjudice causé par la violation de l’obligation du statu quo par un Etat membre (donc dans 1% des affaires d’application privée identifiées dans l´étude). Les rapports par pays révèlent un certain nombre d´éléments qui pourraient expliquer la raison pour laquelle les juridictions nationales n´accordent que rarement des réparations dans les affaires d´application privée. Premièrement, outre l´absence de familiarité des juridictions nationales avec les règles en matière d´aides d´Etat, un certain nombre d´experts juridiques nationaux constatent que les demandeurs ne mettent pas toujours en place un argumentaire structuré pour étayer leur requête. Deuxièmement, il semble que les juridictions nationales font face à des difficultés dans la vérification des conditions appliquées à la notion d´aide conformément à l´article 107(1) TFUE, au règlement général d’exemption par catégorie, à la jurisprudence de la CJUE relative à l´arrêt Altmark ainsi qu´au principe dit de l'investisseur en économie de marché. Troisièmement, un certain nombre de rapports par pays soulignent que les actions en matière d´aides d´Etat requièrent souvent que les juridictions nationales apprécient la légalité de la mesure sous l´angle de différents domaines du droit (par exemple le droit fiscal, le droit administratif, le droit des obligations) ; cette interaction entre différents régimes juridiques complexifie le processus d´évaluation de la mesure sous l´angle des règles en matière d´aides d´Etat. Quatrièmement, un certain nombre de rapports par pays soulignent que les juridictions nationales sont souvent réticentes à ordonner la restitution de l´aide illégale alors que l´affaire est sous l´évaluation de compatibilité dans le chef de la Commission. Finalement, une action en matière d’aides d’Etat implique généralement une lourde charge de la preuve pour le plaignant, surtout en matière d’action en dommages et intérêts. Dans ce dernier cas, le plaignant doit prouver que la mesure en cause représente une aide illégale qui n’a pas été précédemment notifiée à la Commission, et que la mesure d’aide lui a causé un dommage. La violation de l’obligation de statu quo a causé soit une perte de profit et/ou un recul de la part de marché du concurrent du bénéficiaire de l’aide. Dans les deux cas, il peut s’avérer difficile pour le plaignant d’estimer le préjudice subi pendant la période au cours de laquelle l´aide illégale était en vigueur. En effet, des facteurs exogènes ont pu avoir un impact sur ses bénéfices et ses parts de marchés.
La croissante familiarité des juges nationaux avec les règles d’aides d’Etat pourrait s’améliorer à travers la mise en place de programmes de formation et des activités de promotion organisés par la Commission et les autorités nationales. Toutefois, le nombre d’actions en dommages et intérêts accueillies favorablement peuvent augmenter si les juridictions nationales reçoivent « davantage d’indications » en matière de techniques économiques concernant la quantification du préjudice dans les affaires en matière d’aides d’Etat. A cet effet, il est important de noter qu’en 2013, la Commission a publié un Guide Pratique qui résume les techniques économiques concernant la quantification du préjudice dans les affaires d’application privée des règles de la concurrence de l’UE. Le Guide Pratique est un document non contraignant qui cible particulièrement les juridictions nationales et explique aux juges nationaux les étapes suivies par les économistes afin de quantifier le préjudice dans une affaire de droit de la concurrence de l’UE dans un langage simple et accessible. Les juges nationaux s’appuient de plus en plus sur le Guide Pratique qui est considéré comme cadre utile d’évaluation de la fiabilité de la quantification du préjudice mise en avant par les experts engagés par les parties au litige. Le consortium considère que ce guide peut être considéré comme un exemple positif. Il pourrait même être affirmé que, si appliqué à au régime des aides d´Etat, ce guide pourrait augmenter le nombre d´actions en dommages et intérêts qui aboutiraient devant les juridictions nationales, et ainsi contribuer à l´accroissement des affaires d´application privée des règles en matière d´aides d´Etat.
Les bonnes pratiques en matière d’application des aides d’Etat
Les tendances identifiées dans le chapitre 2 suggèrent que l’application des aides d’Etat au niveau national devient de plus en plus effective dans la plupart des Etats membres. Les bonnes pratiques présentées au Chapitre 3 révèlent que certains Etats membres ont conscience qu’amender les procédures nationales est vital pour l’effectivité de l’application des aides d’Etat. Nombreuses de ces pratiques ont pour but d’amorcer une « culture » de l’application des règles en matière d’aides d’Etat parmi les acteurs nationaux (à savoir les autorités qui accordent les subventions, les bénéficiaires et les tiers).
Le consortium a placé ses indicateurs pour les bonnes pratiques en fonction des informations recueillies à partir des rapports par pays et des rapports des affaires identifiées dans la présente étude. Les bonnes pratiques qui ont été décelées par le consortium concerne principalement les règles procédurales nationales et les pratiques juridiques qui pourraient contribuer à réduire la longueur des procédures en matière de restitution des aides après la décision de la Commission. Le consortium a identifié notamment sept bonnes pratiques, divisées en trois catégories :
- Bonnes pratiques en relation avec la restitution : une législation spécifique, des directives en matière de restitution dans le cadre des outils en matière des aides d’Etat et les sanctions pénales pour tout retard dans la restitution ;
- Les bonnes pratiques qui concernent les mécanismes nationaux de filtrage ex ante (à savoir une évaluation de compatibilité non contraignante avec les aides en matière d´aides d´Etat) et les mécanismes ex post (à savoir une évaluation des aides d´Etat en tant que faisant partie du processus décisionnel de l´autorité administrative) ;
- Les bonnes pratiques dites institutionnelles : les règles clarifiant la compétence juridictionnelle dans le cadre de litiges en matière d´aides d´Etat et le principe de l’investigation, selon lesquels une juridiction doit, de sa propre initiative, vérifier les faits de l´espèce et fournir aux parties une explication concernant les procédures et les formalités juridiques à suivre.
Depuis quelques années, certains Etats membres ont adopté une cadre légal spécifique gouvernant la restitution des aides. Malgré le fait que ces lois divergent grandement en termes de champ d’application, d´autorités administratives impliquées et d´étapes procédurales dans le processus de restitution, elles constituent une bonne pratique dans le cadre de l’application des règles en matière d’aides d’Etat au niveau national. L’adoption d’un cadre juridique spécifique pourrait accroître la sécurité juridique et réduire les procédures judiciaires, donc assurer l’application effective des décisions de restitution. D’autres bonnes pratiques identifiées dans le cadre de la restitution des aides sont l’inclusion des instructions concernant des potentielles procédures de restitution dans les actes administratifs octroyant les aides, ainsi que l’adoption de sanctions internes afin de sanctionner les autorités nationales si elles n’appliquent pas la décision de la Commission de manière ponctuelle et adéquate. Cette dernière bonne pratique complète les sanctions financières que la CJUE pourrait imposer à un Etat membre dans le cadre d’une procédure en manquement du fait de l’absence de l’application de toute décision de restitution.
En outre, le consortium considère les mécanismes de filtrage introduits par certains Etats membres comme bonne pratique. De tels mécanismes pourraient être employés soit de manière ex-ante (lorsqu’une autorité nationale fournit une évaluation de compatibilité non contraignante à l’autorité qui accorde la subvention et anticipe ainsi avant toute notification, l’évaluation probable de la mesure d’aides par la Commission), soit de manière ex post (lorsque l’autorité nationale contrôle la compatibilité des mesures d’aides mises en œuvres avec le règlement général d’exemption par catégorie, le règlement de minimis, ainsi qu´avec la notion d’aide, et pourrait ordonner la restitution de l’aide illégale sans décision de la Commission). La légalité du système de contrôle ex post a d’ailleurs été récemment confirmée par la CJUE dans l´arrêt Eesti Pagar, et est conforme avec la croissante pertinence du règlement général d’exemption par catégorie depuis la modernisation du contrôle des aides d´Etat. Finalement, il est important de souligner que les mécanismes ex ante se fondent sur des avis non contraignants des autorités nationales aux autorités accordant l´aide et qui se réfèrent à la potentielle compatibilité de l´aide planifiée avec les règles en matière d´aides d´Etat ; ces avis non contraignants ne se substituent pas à la compétence exclusive de la Commission dans la mise en œuvre de l´évaluation de compatibilité prévue aux articles 107(02) et 107(3) TFUE ainsi que dans les dispositions adoptées en vertu des articles 93, 106(2), 108(2) et 108(4) TFUE.
Au niveau institutionnel, l’étude analyse comme bonne pratique les règles clarifiant les compétences des juridictions dans les litiges en matière d´aides d ´Etat, ainsi que le principe d’investigation dans les procédures juridictionnelles. Alors que la première bonne pratique rend les juges nationaux plus familiers avec les règles des aides d’Etat, la dernière aide a pour objectif d’assister le plaignant dans la mise en place de sa demande conforme aux réparations disponibles dans le cadre des règles en matière d’aides d’Etat, et ainsi augmenter le nombre de réussite des demandes devant les juridictions nationales.
Alors que les bonnes pratiques mentionnées ci-dessus pourraient fournir des enseignements utiles, le principe d’autonomie procédurale nationale milite contre leur expansion généralisée. Toutefois, un nombre de bonnes pratiques créent tout simplement des pratiques de travail qui facilitent la surveillance et l´application des aides d´Etat, et peuvent ainsi aisément être reproduites dans d´autres Etats membres. En d’autres termes, les bonnes pratiques identifiées dans l´étude portent principalement sur les pratiques juridictionnelles qui pourraient aisément être appliquées par les juridictions nationales, plutôt que de favoriser une intervention législative. Depuis le début de la modernisation du contrôle des aides d´Etat, la Commission a établi un certain nombre de groupes de travail qui réunissent des représentants des Etats membres et de la Commission afin de discuter des questions relatives à l´application des aides d´Etat. Par conséquent, la Commission pourrait établir un groupe de travail dans le but de faciliter l´échange de bonnes pratiques entre les représentants des Etats membres. Au sein d´un tel groupe de travail, les Etats membres pourraient s’assister mutuellement afin d’améliorer des politiques existantes (pour les Etats membres qui appliquent déjà les bonnes pratiques) ou d’analyser dans quelle mesure ces pratiques pourraient améliorer l’application des aides d’Etat dans leurs pays (pour les Etats membres qui n´ont pas adopté de telles pratiques).
L’utilisation des outils de coopération par la Commission et les juridictions nationales
Sur base des données recueillies et l’analyse présentée dans le Chapitre 4, le consortium fournit un nombre d’observations clé et de conclusions sur l’utilisation et des points de vue sur les outils de coopération tels que définis à l’article 29 du règlement procédural sur les aides d’Etat. Les outils inclus dans l’article 29 sont la demande de renseignement, la demande d’avis, et les observations de l’amicus curiae.
Les juridictions nationales semblent recourir aux outils de coopération de façon modérée. Au cours de la période d’étude, la Commission a reçu au moins sept demandes de renseignement. Au cours de la même période, la Commission a fourni au moins vingt amicus curiae. La Commission a fourni au moins 21 avis à la demande des juridictions nationales depuis 2009, date à laquelle toute information relative aux demandes d’avis a été rendue disponible.
Le consortium a identifié deux raisons principales pour l´utilisation limitée des outils de coopération. Premièrement, demander conseil à la Commission concernant des questions relatives aux aides d’Etat ne semble pas être l’approche favorisée par les juges. La plus grande majorité des juges préfère consacrer eux-mêmes du temps et de l’effort afin d´essayer de trouver une réponse à la question (juridique) d´espèce. Ensuite, consulter leurs collègues de la même juridiction est la deuxième approche employée. Finalement, si le juge ne peut trouver de réponse à la question (juridique) d´espèce, les juges s´adresseront plus probablement à la CJUE à travers une demande de décision préjudicielle plutôt qu´à la Commission.
Une seconde raison qui explique l’utilisation limitée des outils de coopération semble être relative à une absence de prise de conscience parmi les juges de l’existence des outils de coopération. En effet, environ 40% des juges ayant participé au questionnaire en ligne ont indiqué qu’ils n’ont jamais entendu parler des outils de coopération avant d’avoir participé à la présente étude. Les juges interviewés ont confirmé cela : certains ont indiqué que leurs collègues n’étaient pas familiers avec l’existence de ces outils. D’ailleurs, même les juges qui ont connaissances de certains des outils, ne sont pas nécessairement familiers avec l’ensemble des outils. Il pourrait être remédié à ce manque de connaissance parmi les juges sur l’existence des outils de coopération grâce à des initiatives de sensibilisation.
Même si demander l’avis de la Commission ne semble pas être l’approche la plus courante adoptée par les juges, les juges apprécient la possibilité de s’adresser à la Commission. De plus, la volonté d’utiliser les outils de coopération par les juges dans de futures affaires semble importante. Les retours obtenus des juges qui ont utilisé les outils de coopération ont montré que la possibilité pour eux de communiquer dans leur langue nationale est largement valorisée. Au regard des questions relatives à la qualité des réponses de la Commission, et notamment l’utilité des réponses dans le cadre d’affaires en cours, les avis des juges divergent. Certains juges indiquent être satisfaits avec les renseignements obtenus, alors qu’une minorité d’entre eux considère que les renseignements obtenus n’étaient pas utiles. Quant à la procédure, la majorité des juges sont d’avis qu’elle est facile et efficace. Toutefois, il ne semble pas toujours être clair pour eux quelle procédure ils doivent suivre.
Les principales initiatives que la Commission pourrait engagées pour soutenir l’utilisation des outils de coopération sont les suivantes :
- Améliorer l’accessibilité sur les directives pratiques concernant les procédures en matière d’outils de coopération. Ces informations pourraient être mises à disposition, outre sur le site internet de la Commission (DG Concurrence), également sur les plateformes régulièrement utilisées par les juges pour rechercher des informations juridiques, comme par exemple le site internet d’EUR-Lex.
- La diffusion de l’information et la promotion des règles en matière d’aides d’Etat en général et des outils de coopération en particulier, en ayant comme objectif l’augmentation de la prise de conscience générale des juges nationaux. Pour atteindre cet objectif, la Commission pourrait mettre en place une plateforme en ligne qui permettrait à un juge de vérifier l´information requise et de poser une question en ligne sur une plateforme protégée uniquement accessible aux juges.
1. Context and objectives of the Study
This document constitutes the Final Study for the ‘Study on the enforcement of State aid rules and decisions by national courts (COMP/2018/001)’ (also referred to as: the ‘Study’), carried out for DG Competition of the European Commission (also referred to as: the ‘Commission’) by Spark Legal Network (also referred to as: the ‘Data Collection Team’), the European University Institute (also referred to as: the ‘State Aid Team’; Spark Legal Network and the European University Institute are together also referred to as: the ‘Study Team’), Ecorys (also referred to as: the ‘Cooperation Tools Team’) and Caselex (also referred to as: the ‘Editorial Team’) (together also referred to as: the ‘Consortium’). The Consortium was supported by a network of national legal experts who were responsible for legal data collection and analysis on the enforcement of State aid rules at national level, producing case summaries and country reports.
This Final Study starts with an introductory chapter (the current Chapter 1) which includes the legal context, the objectives and a summary of the methodology applied throughout the Study. Chapter 2 presents a summary and analysis of State aid enforcement by national courts across the European Union (also referred to as: the ‘EU’), comprising the main trends with regard to the enforcement of EU State aid rules by national courts across the EU. Chapter 3 provides best practices in State aid enforcement by national courts across the EU. Chapter 4 focuses on the findings with regard to the use of cooperation tools by Commission and national courts in relation to State aid rules.
The following annexes are attached to this Study:
- Annex 1: Technical details: Detailed methodology and supporting materials.
- Annex 2: List of relevant rulings on State aid matters: Covering 27 Member States , contained in a spreadsheet.
- Annex 3: Country reports: Each of the 28 country reports contains general conclusions on the state of play of State aid rules at national level, a list of the relevant rulings rendered by the Member State's courts, and summaries of a selected sample of rulings (also referred to as: ‘selected rulings’).
- Annex 4: Methods and evidence of data collection for Task 4 (on the use of cooperation tools by the Commission and national courts).
1.2 Introduction to EU State aid rules
1.2.1. Introduction to EU State aid rules
Under Article 107(1) of the Treaty on the Functioning of the European Union
(also referred to as: the 'TFEU'), State aid granted by Member States of the
European Union (also referred to as: 'Member States') is prohibited. However,
aid is or may be considered compatible with the internal market under Article
107(2) and (3), and under the provisions adopted pursuant to Articles 93,
106(2), 108(2) and 108(4) TFEU.
Under Article 107(1) TFEU, a State measure is considered 'State aid' when
the following cumulative conditions are met:
- The aid is granted to either one or a group of 'undertakings' - i.e.
any public support granted to individuals is outside the scope of State
aid control. An undertaking is broadly defined by the case law of the
Court of Justice of the European Union (also referred to as: the 'CJEU')
as "any entity engaged in an economic activity regardless of the legal
status of the entity and the way in which it is financed”.
- The aid is granted "by a Member State or through State resources”. The
aid, therefore, can be granted by central, regional or local State authorities,
as well as by State-owned undertakings.
- The aid is "selective' – i.e. the aid is discriminatory, and thus only a
single/limited number of products and/or undertakings within the internal
market benefit from the aid.
- The aid creates an 'advantage' for the beneficiary undertaking. The aid can
take "any form" – i.e. a grant, tax rebate, loan/State guarantee at an interest
rate more favourable than under market conditions. When the existence of an
advantage is not self-evident, like in the case of a loan or State guarantee,
the advantage will be assessed on the basis of the 'Market Economic Operator
Principle' (MEOP). The test follows this logic: would a market operator grant
a loan/State guarantee to the beneficiary undertaking at the same conditions
as the Member State? If the answer is positive, there is no State aid, since
the State in such case acts like a market economic operator.
- The aid "affects trade between Member States”. The condition has been
broadly interpreted by CJEU case law to include any aid that could
potentially/indirectly affect trade between Member States.
- The aid "distorts or threatens to distort competition” in the internal
market. This condition is usually presumed to be satisfied when the
previous cumulative conditions are fulfilled.
Under Article 108(3) TFEU, Member States must notify to the Commission any
plan to grant new aid that fulfils the conditions under Article 107(1) TFEU.
In addition, Member States are subject to a standstill obligation, whereby
they cannot implement the aid measure before the Commission has completed
the compatibility assessment of the notified aid. The Commission, in fact,
has the exclusive competence to assess whether aid prohibited under Article
107(1) TFEU is or may be considered compatible with the internal market under
Article 107(2) and (3) and under the provisions adopted pursuant to Articles
93, 106(2), 108(2) and 108(4) TFEU.
Under Article 263(1) TFEU, the CJEU has exclusive jurisdiction to review the
legality of Commission decisions. Therefore, national courts of the Member
States cannot review the Commission State aid decisions. However, according
to the 2009 Commission Notice on the enforcement of State aid rules by national
courts (also referred to as: the '2009 Enforcement Notice'), national courts
are involved in the enforcement of State aid rules in relation to two types
of legal proceedings:
- Implementation of recovery decisions (i.e. public enforcement of State aid
rules): once the Commission adopts a recovery decision (ordering a Member
State to recover incompatible aid previously implemented in breach of the
standstill obligation), the national courts will be involved in the recovery
proceedings.
- Enforcement of Article 108(3) TFEU (i.e. private enforcement of State aid
rules): interested third parties can start an action in a national court
in view of the direct effect of the standstill obligation under Article
108(3) TFEU. In particular, competitors can ask for the recovery of the
aid implemented in breach of the standstill obligation (i.e. unlawful aid),
independently of the compatibility assessment carried out by the Commission.
Finally, competitors can also start damages actions. In the context of private
enforcement, national courts rule on whether the challenged measure fulfils
the conditions to be considered State aid under Article 107(1) TFEU and
thus it represents unlawful aid, having not been notified to the Commission.
The present Study covers both public and private enforcement of State aid rules
by national courts of the Member States.
1.2.2. Public enforcement of State aid rules
When the Commission adopts a recovery decision, the Member State concerned ""...shall
take all the necessary measures to recover the aid from the beneficiary." The aid
beneficiary may try to avoid the implementation of the recovery decision by
challenging the recovery order or any other implementing act adopted by the
national authorities, before a national court. In particular, national courts
fulfil a number of functions in the context of the implementation of the
recovery decision:
- Quantification of the State aid to be recovered: The Commission is not
required to quantify the exact amount of the aid to be recovered in
its decision. The latter is a task usually left to national authorities.
Recovery shall cover the time from the date when the aid was put at the
disposal of the beneficiary until the moment of the effective recovery.
The amount to be recovered shall bear interest until the moment of the
effective recovery. Courts may be called upon to adjudicate on any
resulting dispute between the beneficiaries and the State in relation
to same.
- Identification of the aid beneficiary: National authorities may have
to identify the aid beneficiary. This might be a complex task in case
the beneficiary had been either acquired by another firm or split into
different firms. Similarly, the national authorities need to identify
both the direct and indirect aid beneficiaries from whom the aid should
be recovered. Here too, litigation in a national court is possible if
there is a dispute as to the identification of the beneficiary.
- Suspension of the recovery procedure: National courts do not have jurisdiction
to review the legality of the Commission decision. In addition, challenging
the decision before the General Court of the European Union (also referred
to as the 'GC') and the CJEU does not have a suspensory effect under Article
278 TFEU. Nevertheless, in Atlanta and Zuckerfabrik, the CJEU ruled that a
national court can order the suspension of the recovery decision in exceptional
circumstances. In particular, in these rulings the CJEU identified four
cumulative conditions to justify the suspension by a national court of the
implementation of the recovery decision:
- The national court has "serious doubts" about the validity of the Commission
decision. The national court should refer a request for a preliminary ruling
to the CJEU, unless the Commission decision has already been challenged
before the CJEU.
- "There is urgency, in that the interim relief is necessary to avoid serious
and irreparable damage being caused to the party seeking the relief."
- The national court takes "due account of the interest of the EU".
- The national court must "respect the CJEU case law".
- Indirect challenges against a Commission decision: Member States can directly
challenge the legality of the Commission decisions as 'privileged actors' under
Article 263(4) TFEU. In accordance with the Plaumann test, the aid beneficiary
can challenge the Commission decision under Article 263(4) second limb if they
are individually concerned by a decision "by reason of certain attributes which
are peculiar to them or by reason of circumstance in which they are differentiated
from all other persons”. By contrast, competitors rarely fulfil the conditions
under Article 263(4) second limb to have legal standing in accordance with the
Plaumann test. The CJEU has recently 'softened' the conditions of legal standing
of the competitors of the aid beneficiary in Montessori. In the judgment, the
CJEU interpreted the meaning of Article 263(4) third limb in the field of State
aid rules. The provision, introduced by the Lisbon Treaty, grants to natural and
legal persons the locus standi to challenge at the GC "…a regulatory act which
is of direct concern to them and does not entail implementing measures”.
In Montessori, the CJEU recognised that Commission State aid decisions are,
subject to certain conditions, 'regulatory acts' Therefore, competitors will
be able in the future to rely on this recent case law to challenge Commission
decisions.
In addition, in view of the traditional restrictive wording of
the Plaumann test and in order to guarantee judicial redress to the aid beneficiary,
in Atzeni the CJEU recognised that in case the plaintiff does not fulfil the conditions
of locus standi under Article 263(4) second limb TFEU, it could indirectly challenge
the legality of the Commission decision before a national court. In line with Atlanta
and Zuckerfabrik case law, in such case the national court would refer a request for
a preliminary ruling to the CJEU in relation to the legality of the recovery decision.
However, in view of the recent Montessori ruling, Atzeni case law may become less
relevant: competitors may rely on the Montessori ruling to claim legal standing at
the GC.
- Aid recovery in the context of insolvency proceedings: An alternative to full recovery
of the unlawful/incompatible aid is the liquidation of the beneficiary. Insolvency
procedures are carried out in accordance with national law. However, the CJEU has
elaborated a number of general principles that should guide national courts in
insolvency procedures involving the recovery of incompatible/unlawful aid:
- The beneficiary's assets should be sold in an open and transparent manner.
- The insolvency procedure must lead to the cessation of business activities of
the aid beneficiary.
- In the context of the insolvency procedures, the State aid claim should be
registered on the basis of the appropriate ranking.
- National courts must ensure that there is no economic continuity with the
successor company. The successor company is liable to pay back the aid only
if there is economic continuity with the aid recipient. Unless the original
beneficiary paid back the full amount of the aid, in fact, that amount should
be registered in the schedule of liabilities and recovered in the context of
the insolvency procedures.
- Assessing the impossibility to recover the aid: As mentioned above, the insolvency
of the aid beneficiary is not a justification to avoid the implementation of the
recovery decision. According to the CJEU case law, recovery can be avoided only
when it is "absolutely impossible”. Nevertheless, "political and legal difficulties”
faced by Member States in the context of the recovery procedure do not represent a
valid justification to avoid the implementation of the Commission decision.
- Assessing the recovery time limit: in view of the principle of legal certainty, the
State aid Procedural Regulation defines a time limit of 10 years for the recovery of
unlawful aid. Such time limit is counted from the moment the unlawful aid is granted
to the beneficiary; the time limit is interrupted if the Commission opens investigations
concerning the unlawful aid. Therefore, national courts might be called on to assess
claims concerning the impossibility of aid recovery put forward by the beneficiary
concerning the expiry of the 10 years' time limit.
In terms of the applicable EU acquis, the national courts will primarily be guided by
the recovery decision concerning the individual unlawful/incompatible aid which they must
enforce at the national level. Secondly, national courts will be guided by CJEU case law,
defining their tasks in relation to public enforcement of State aid rules. Finally, the
national courts may also refer to the Commission Recovery Notice.
From a procedural point of view, on the other hand, recovery takes place "… in accordance
with the procedures under the national law of the Member State concerned” (i.e. principle of
procedural autonomy). In particular, the courts that have jurisdiction to hear disputes
concerning recovery orders implementing a Commission decision can vary from country to country.
However, on the basis of the principles of equivalence and effectiveness, national procedural
rules cannot undermine the effective enforcement of the recovery decision.
1.2.3. Private enforcement of State aid rules
Under Article 108(3) TFEU, Member States cannot implement an aid measure before its final
approval by the Commission (i.e. standstill obligation). In SFEI, the CJEU recognised the
horizontal direct effect of Article 108(3) – i.e. any affected party can request before a
national court the recovery of the aid disbursed in breach of the standstill obligation
(i.e. unlawful aid).
As mentioned above, national courts cannot assess the compatibility of the aid.
Nevertheless, national courts must assess whether a State measure qualifies as 'State aid',
and thus determine if it was implemented unlawfully. In particular, national courts check
if the aid fulfils:
- The cumulative conditions under Article 107(1) TFEU: In this regard, the national
court will have to take into consideration the CJEU case law on Article 107(1) TFEU,
as codified by the 2016 Commission Notice on the Notion of State aid.
- The General Block Exemption Regulation (GBER): Aid schemes that fulfil the GBER
conditions are presumed to be compatible, and thus they do not need to be notified
to the Commission. National courts are empowered to assess the compliance of State
aid measures with the GBER.
- The State aid de minimis Regulation: Under the de minimis Regulation, aid measures
below EUR 200,000 granted during a period of three fiscal years are considered to be
"too small” to have a distortive impact on the competition in the internal market
under Article 107(1) TFEU, and thus they do not need to be notified to the Commission.
Such threshold is increased to EUR 500,000 in relation to de minimis aid granted in
the context of Services of General Economic Interest (SGEI).
- ‘Existing aid': State aid measures granted by a Member State before joining the
EU or previously approved by the Commission are considered existing aid. Under
Article 108(1) TFEU, the Commission, in cooperation with the Member States, constantly
monitors existing aid. In particular, the Commission can ask for the modification of
the aid measure if the conditions in the market have changed, and thus the measure
is not needed anymore. On the other hand, existing aid measures are not unlawful
and thus they cannot be subject to private enforcement claims in national courts.
National courts, therefore, may verify if a measure qualifies as 'existing aid',
but the Commission has exclusive competence to ask for modifications/abolition of
the aid measure in view of new developments in the market.
Besides ordering the recovery of the unlawful aid, national courts can adopt interim
measures to suspend the implementation of unlawful aid (e.g. ordering the granting
authority to suspend the implementation of unlawful aid). The objective of the interim
injunction is to protect the rights of the claimant during the court proceedings.
In order to guarantee the effective recovery of the unlawful aid, the national court
should also order the recovery of the interest earned by the beneficiary. In other words,
the recovery should not be limited to the nominal value of the aid, but it should also
cover the financial advantage that the beneficiary gained from the aid. The recovery of
interest aims at forfeiting the time advantage enjoyed by the aid beneficiary. The
'advantage' is equivalent to the difference between what the aid beneficiary could
have obtained in the market and the cost of its financing under the aid measure concerned.
The interest accrues from the moment the aid was at the disposal of the beneficiary until
the effective recovery of the aid. National courts will rely on national rules on the
calculation of the applicable interest rate. However, due to the principles of
equivalence and effectiveness, the application of national rules should not lead to
the calculation of a lower interest rate in comparison to the rate calculated by the
Commission in similar circumstances. Finally, as ruled by the CJEU in CELF, the
recovery of the interest is independent from the compatibility assessment; recovery
of the interest should always take place even if the unlawful aid has been declared
compatible by the Commission.
Besides the recovery of the interest, in SFEI the CJEU recognised that the competitors
of the beneficiary can be entitled to receive compensation due to the damage caused by
the unlawful aid. Such compensation should be paid by the granting institution, rather
than by the beneficiary, since the latter is not liable for the lack of compliance with
the notification obligation. The notification to the Commission is, in fact, an obligation
that falls entirely on the national authorities. Therefore, the conditions for obtain
damages for a breach of State aid rules are the equivalent to State liability for breach
of Union law. In Francovich, the CJEU recognised for the first time that Member States
may be liable to pay compensation to individuals due to the damage caused by the lack
of implementation of an EU Directive. In Brasserie du Pêcheur, the CJEU introduced
general criteria to assess Member State liability for breach of Union law: the breached
Union law should confer rights on individuals; there is "serious breach” of Union law;
there is a "causal link” between the breach and the damage suffered by the plaintiff.
With regard to State aid rules, the standstill obligation under Article 108(3) TFEU
grants rights to individuals and lack of compliance by a Member State is considered a
"serious breach” of Union law. The major challenge faced by the plaintiff is represented
by the damage quantification and by showing the existence of a causal link between the
damage suffered and the lack of compliance with the standstill obligation. Finally,
competitors might receive compensation from the aid beneficiary if this type of action
is allowed under national law.
The last type of remedy involving private enforcement of State aid rules concerns
tax measures imposed by Member States to finance an unlawful State aid measure. In
Streekgewest, the CJEU recognised that a third party can challenge its tax burden
when the tax payment "forms an integral part of the unlawful State aid measure”.
In particular, the claimant can challenge the unlawful aid even if it is not a competitor
of the aid beneficiary, and thus even if it is not directly affected by the unlawful aid.
On the contrary, a third party cannot obtain from a national court an exemption from
the payment of a tax which is equivalent to the unlawful aid. Such exemption, in fact,
would broaden the number of beneficiaries of the unlawful aid, rather than reduce it.
Such exemption could be granted under national non-discrimination and unfair
competition law.
The EU acquis does not harmonise the national procedural rules followed by national
courts. In accordance with the principle of procedural autonomy, in fact, national
rules define which courts have jurisdiction in recovery proceedings and damages
claims, as well as the procedural rules which are applicable. However, in view
of the principle of equivalence and effectiveness, national courts could set aside
certain national procedural rules that make the enforcement of State aid rules de
facto impossible. The following table summarises the relevant EU acquis and types
of remedies available in relation to the two types of enforcement proceedings.
1.3. Objectives of the Study
The aim of this Study is to provide the state of play of State aid enforcement
by national courts in the EU. It therefore offers a comprehensive overview of
the enforcement of State aid rules by national courts of the 28 Member States,
identifying emerging trends and challenges, and presenting best practices.
The Study looks at national enforcement cases which were decided between 1 January 2007
and 31 December 2017. However, the Study also includes 33 important rulings that were
decided in 2018. The temporal coverage of the Study is hereinafter also referred to
as: the ‘Study Period’. It also provides insights on the use of cooperation tools
by the Commission and national courts.
More specifically, the Study focusses on:
- Enforcement of the standstill obligation by national courts
On the basis
of country statistics, the Study analyses trends in private enforcement of
State aid rules at national level.
- Enforcement of the recovery decisions by national courts
The case summaries
and country reports include information on how recovery decisions have been
implemented by national authorities. In particular, the Study identifies
possible correlations between the average time of aid recovery in the different
Member States and the applicable procedural framework, in order to elaborate
best practices that could be extended to the other Member States.
- Interim measures
The Study discusses the role of interim injunctions in
private enforcement of State aid rules.
- Difficulties faced by national courts in the enforcement of State aid rules.
An analysis of national case law has allowed the Study to set out the difficulties
faced by national judges in the enforcement of State aid rules.
- Identification of the best practices in State aid enforcement
On the basis of the
information gathered, the Study elaborates a number of best practices regarding State
aid enforcement.
- Cooperation tools between national courts and the Commission
The Study provides
insight into the actual use of and views on the cooperation tools by national courts.
In order to meet the objectives as set out above, the Consortium carried out
the following tasks:
- Task 1 – Identify, classify and summarise the most relevant rulings rendered
by national courts on State aid matters;
- Task 2 – Summary of the main findings at EU level;
- Task 3 – Identification of best practices;
- Task 4 – Use of the cooperation tools by the Commission and the national courts.
In the section below, a description is provided of the methodological approach
that the Consortium has applied in order to fulfil Tasks 1 - 4. A more detailed
description as well as the supporting materials that the Consortium relied upon
and produced while carrying out the Study can be found in Annex 1.
1.4. Overview of methodological approach and completed tasks
1.4.1. Introduction
In order to fulfil the objectives of the Study, the Consortium has carried out
four main tasks. During Task 1 (‘Identify, classify and summarise the most relevant
rulings rendered by national courts on State aid matters’), the Study Team in
cooperation with the national legal experts, worked on the identification and
compilation of a list of relevant rulings adopted by national courts in the
Member States since 2007. Subsequently, the Study Team and the national legal
experts selected a sample of rulings from the list of relevant rulings, on the
basis of their legal relevance and novelty within each Member State and at EU level.
Lastly, the national legal experts drafted case summaries of the selected sample of
rulings and created country reports for each Member State. Additionally, during this
task, the Editorial Team developed a Case Database, to capture the case summaries
produced under this Study with the objective of being made publicly available upon
completion of the Study. The execution of Task 1 formed the bases of Task 2 (‘Summary
of the main findings at EU level’) and Task 3 (‘Identification of best practices’),
which consisted of analysing and summarising the main findings with regard to the
enforcement of EU State aid rules by national courts across the EU and identifying
best practices respectively. These tasks were undertaken by the State Aid Team
(supported by the Data Collection Team). The objective of Task 4 (‘Use of the cooperation
tools by the Commission and the national courts’), carried out by the Cooperation
Tools Team, was to undertake research, gathering knowledge of the use of and views on
the cooperation tools provided for in Article 29 of the State aid Procedural Regulation.
What follows below is an overview of the methodological approach applied by
the Consortium in executing their respective tasks. A detailed description and
supporting materials can be found in Annex 1.
1.4.2. Task 1 - Identify, classify and summarise the most relevant rulings rendered by
national courts on State aid matters
Task 1A: Identifying and assembling the list of rulings
adopted by national courts in the 28 Member States since 2007
The Study Team firstly prepared a detailed Guidance Document for the national
legal experts, in order to fulfil their tasks under this project. At the same time,
the Editorial Team started to develop the reporting infrastructure for the case
summaries, to be collected in a dedicated Case Database.
After the distribution of the Guidance Document to the national legal experts,
they started the first part of their desk research: the identification and
accumulation of a list of relevant national rulings in their Member State in a
dedicated spreadsheet. The relevant rulings to be identified by the national
legal experts were “rulings from 1 January 2007 to 31 December 2017 (but not
excluding relevant rulings from 2018), from the last two instance competent
courts of the Member State in which a party to the proceedings raised an argument
based on State aid, this argument was (to some extent) expanded upon by the national
court, and the rulings can be categorised as falling under public or private
enforcement of State aid as defined for the purposes of this Study. The national
legal experts were instructed to include any ruling from lower courts concerning
State aid rules that were considered of particular relevance, but may not have
been appealed (in which case they would probably already be included), in the
spreadsheet.
The full list of relevant rulings can be found under Annex 2, and the lists
for each Member State can be found in the country reports under Annex 3.
Task 1B: Selecting the sample of judgments and drafting
case summaries and country reports
Selecting a sample of judgments
After the Study Team had approved the lists of relevant rulings, the national
legal experts commenced their task of selecting the sample of rulings from the
lists of relevant rulings, on the basis of their legal relevance and novelty
within each Member State and at EU level. In identifying the selected rulings,
the national legal experts were asked to identify at least the following minimum
number of rulings, as required by the Tender Specifications of this Study:
- France, Germany, Italy, Spain and United Kingdom: 10 rulings;
- Belgium, the Netherlands and Poland: 7 rulings;
- Austria, Czech Republic, Denmark, Finland, Greece, Portugal, Sweden: 5 rulings;
- Bulgaria, Croatia, Cyprus, Estonia, Hungary, Ireland, Luxembourg, Lithuania,
Latvia, Malta, Romania, Slovenia and Slovakia: 3 rulings.
According to the instructions provided, the national legal experts took into account
the following considerations in selecting these rulings:
- The rulings selected contained an important consideration regarding State aid
enforcement and State aid was one of the main aspects of the proceedings,
rather than an ancillary argument put forward by the parties;
- The rulings were not mere repetition of settled case law;
- Rulings in which the court referred only to an administrative matter or issue
could not be considered to constitute a selected ruling;
- For cases on which there had been multiple rulings, only the most relevant
ruling (i.e. the most representative case of the legal saga) was selected.
Required numbers of selected rulings
For three Member States, the Study Team established that, despite broadening the search
and applying additional verification checks, the required minimum number of relevant rulings
could not be identified. For two Member States, namely Malta and Croatia, only one relevant
ruling was identified, while in one Member State (Luxembourg) no relevant ruling could be
found. In order to ensure that the total minimum number of 145 rulings to be included in the
Case Database was reached, and analysed under Task 2, it was agreed between the Commission
and the Consortium that additional rulings would be added, under the condition that they
covered topics that were not already dealt with by other rulings in the representative sample.
On the basis of the above, additional rulings were added for Austria, Belgium, France, Germany,
Italy, the Netherlands and Spain to the selection of rulings.
Preparing case summaries
The next step in this task was the preparation of a case summary by the national legal experts
for each of the selected rulings, in accordance with a template designed and provided by the
Study Team (please refer to Annex 1, Part A for a more detailed description and the templates
used in the Study).
In addition to the case summaries, the national legal experts provided PDF files containing
the full text of the selected rulings to be uploaded to the Case Database. In doing so, the
national legal experts checked whether the rulings collected and saved in PDF were not subject
to any pre-existing intellectual property rights. In most Member States, the rulings were free
of such rights. However, in some Member States rulings are only accessible via private databases;
in such cases, the rulings could not be uploaded to the Case Database.
Drafting 28 country reports
For each Member State, the national legal experts also prepared a country report, again
following a structured template containing general questions regarding the relevant courts
and procedures, as well questions to be answered based on the case summaries and, to some
extent, on the broader research including on the list of relevant rulings, carried out by
the national legal expert.
The case summaries and country reports can be found in Annex 3. In addition, the case summaries
can be found in a Case Database, which is accessible via the project website.
Developing the project website
In Annex 1, Part A, more detailed information on the content and design of the project
website can be found.
1.4.3. Task 2 – Summary of the main findings at EU level
Introduction
The State Aid Team, with the support of the Data Collection Team, subsequently proceeded
to analyse the findings in order to identify a number of trends in State aid enforcement.
Chapter 2 of the present Study presents the identified trends.
The State Aid Team relied on the data collected under Task 1, in particular the lists of
766 relevant rulings, the 145 case summaries and 28 country reports included in Annex 2 and
3 of the present Study. In particular, while the country reports aimed at identifying trends
in each Member State, the analysis carried out under Task 2 aimed at aggregating the findings
at EU level. The analysis under Task 2 covered the Study Period, and it covered both public
and private enforcement of State aid rules. The Study Team relied on the data collected under
Task 1 for Task 2 both to elaborate a number of statistics (i.e. quantitative trends), as well
as to point out a number of qualitative trends from the case summaries and country reports, and
finally to draw a comparison with the trends identified by the 2006 Study on the enforcement of
State aid rules by national courts (also referred to as: the ‘2006 State Aid Study’).
The distinction between public and private enforcement of State aid rules relies on the legal
context presented in Section 1.2. In the current Study, the expression ‘public enforcement’
refers to relevant national rulings that flow from a recovery decision, where the Commission
found an unlawful aid incompatible with the internal market under Article 107 TFEU. Two main
categories of recovery-related litigation can be distinguished in national courts: (i) actions
brought by the recovering authority seeking a court order to force an unwilling beneficiary to
pay back the aid and (ii) actions brought by beneficiaries contesting the recovery order,
including individual measures to ensure recovery. Further, a number of cases identified in
the present Study relate to disputes concerning aid recovery directly ordered by national
administration authorities, without any direct involvement of the Commission. As the CJEU
recently recognised in Eesti Pagar, national administrative authorities have to order the aid
recovery when the granting authority breaches the standstill obligation, by implementing the
aid measure without the previous aid notification to the Commission. For instance, a national
authority has to order the recovery of an aid previously granted, if the aid measure breaches
the GBER conditions. In the context of the present Study, national rulings concerning disputes
related to recovery orders without a Commission decision have also been included in the category
of ‘public enforcement’, since they concern disputes before national courts challenging an aid
recovery order.
On the other hand, the expression ‘private enforcement’ refers to litigation before a national
court triggered by an alleged breach of the standstill obligation under Article 108(3) TFEU,
where no aid recovery has previously been ordered either by national authorities or by the
Commission. As discussed in Section 1.2, a national court may adopt a number of remedies in
a private enforcement case, such as interim measures, ordering the recovery of the unlawful
aid and the relevant interest, awarding damages, as well as ordering the reimbursement of the
taxes paid for financing an unlawful aid. Finally, in a number of cases identified in the context
of the present Study, the national courts awarded ‘additional’ remedies in comparison to those
mentioned in the 2009 Enforcement Notice and discussed in Section 1.2. For instance, in some
cases the plaintiff requested the national Constitutional Court to declare national legislation
unconstitutional, since it represented an unlawful aid in breach of EU State aid rules.
Therefore, in the context of the present Study, the category of ‘private enforcement’ includes
all national rulings concerning a breach of the standstill obligation, where no recovery was
previously ordered either by the Commission or by national administrative authorities,
independently of the type of remedy awarded by the national court.
1.4.4. Task 3 – Identification of best practices
Structure of the best practices
The first step to identify examples of best practices is to define what is meant by
‘best practices’. In the context of the present Study, ‘best practices’ are those practices
that ensure an effective resolution of the issue at hand and which get closest achieving the
aims of public enforcement of State aid rules (i.e. recovering unlawful aid, thus removing
the distortion of competition caused by the aid) and private enforcement (i.e. safeguarding
the rights of the claimant while also contributing to the removal of unlawful aid, thus removing
the distortion of competition caused by the aid).
An initial and important point is that good practices emerge from a combination of judicial
wisdom and procedural structure. Accordingly, the Study identifies best practices in both
the legal framework and the judgments.
In Chapter 3, the Study identifies a set of indicators to assess how a given jurisdiction performs:
- The speed with which cases are likely to be resolved as a result of the practice;
- The quality of coordination with parallel Commission procedures;
- The degree to which the remedies provide for adequate compensation
(private enforcement) / restoration of the status quo ante (public enforcement);
- The tools used for judicial dialogue.
1.4.5. Task 4 - Use of the cooperation tools by the
Commission and the national courts
The objective of Task 4 was to undertake research amongst national courts
to gather knowledge on the use of and views on the cooperation tools used by
national courts and the Commission regarding State aid rules provided for in
Article 29 of the State aid Procedural Regulation. In order to collect the
relevant information to assess the actual use of and views on the cooperation
tools, the Cooperation Tools Team used several data collection methods. More
specifically, the Cooperation Tools Team undertook the following steps: (i)
desk research, mainly using data available within the Commission, (ii) interviews
with Commission staff, (iii) an online questionnaire aimed at national courts
(national judges) and (iv) interviews with national judges.
Desk research
The aim of the desk research was twofold. Firstly, the Cooperation Tools Team
used the desk research to obtain an overview of how often each of the three
cooperation tools was used. Secondly, the Cooperation Tools Team used the desk
research to gain insights into the geographical distribution of courts using
the tools.
Interviews with Commission staff
The aims of these interviews were (1) to collect factual information (i.e. how
often the cooperation tools are used; which courts are involved; possibility to use
available contact details for the survey) and (2) to obtain a better understanding
of how Commission staff perceives the use of the cooperation tools. The Cooperation
Tools Team shared a topic list for the interviews.
Online questionnaire
The questionnaire aimed to collect information from judges, who might have
encountered one or more of the cooperation tools cited in Article 29 of the State
aid Procedural Regulation. Relevant questions asked to the judges related to their
familiarity with the cooperation tools, the number of times they considered using
a tool, the reasons for (not) using the tool, and their experiences so far. In addition,
the Cooperation Tools Team asked the judges whether specific bottlenecks are currently
hampering the use of the cooperation tools and what could be done to tackle these
bottlenecks.
The Cooperation Tools Team distributed the questionnaire via several channels.
Firstly, judges who participated in training courses organised by the European
University Institute in the context of ENTraNCE for Judges were directly invited
to participate in the questionnaire. Secondly, the Association of European Competition
Law Judges (AECLJ) shared the link to the questionnaire among the judges who are
member of the association. Thirdly, the Academy of European Law (ERA) agreed to
share the online questionnaire with judges who participated in their training courses.
As the response rate remained rather limited, the Cooperation Tools Team decided to
identify and contact national judicial associations and to ask them whether some of
their members would be willing to participate in the Study.
Interviews among selected courts
The aim of the interviews was to obtain an in-depth understanding of the views
on the cooperation tools. The Cooperation Tools Team identified two types of
responses; courts with (some) experience in using the cooperation tools and courts
without experience in using the tools. Firstly, for the (limited number of) courts
that have experience with one of the cooperation tools, the focus of the interview
was on how the decision to use the tools had been, or is, taken and how the judges
involved had experienced this process. Secondly, the Cooperation Tools Team conducted
several interviews with courts who have experience with State aid rules, but who
have not used any of the cooperation tools. The focus of these interviews was on
the identification of potential barriers for the use of the tools.
The Cooperation Tools Team undertook several routes for contacting the judges.
First, the Cooperation Tools Team contacted the courts who are familiar with one
of the tools. The Commission shared with the Cooperation Tools Team a list of
cases in which one of the tools has been used. Secondly, the Cooperation Tools
Team invited a selection of judges on the European University Institute-list for
an interview. In addition to the judges included on the European University
Institute-list, the Cooperation Tools Team also invited judges who are members
of the AECLJ to participate in an interview. Another route the Cooperation Tools
Team followed was the online questionnaire. Judges could indicate whether they
would like to participate in a follow-up interview. Additionally, the Cooperation
Tools Team approached the national associations and asked them whether members
would be willing to participate.
2. State aid enforcement by national courts
Chapter 2 analyses the main trends in the enforcement of State aid rules by the national courts of the Member States during the Study Period. The chapter highlights a number of quantitative trends based on statistics extracted from the lists of relevant rulings, country reports and case summaries (to be found in Annexes 2 and 3, respectively), and qualitative trends based on national judgments and national procedural rules relevant in State aid enforcement. In Section 2.2, the main trends are discussed in relation to public enforcement (Section 2.2.1) and private enforcement of State aid rules (Section 2.2.2). Finally, Section 2.3 concludes the analysis of the trends, by comparing the main findings identified in Section 2.2 with the conclusions reached by the 2006 State Aid Study.
2.2. Main findings of the Study - main trends in the Study Period
2.2.1. Public enforcement by national courts
Aggregated statistics at EU level
Limited number of public enforcement cases
As can be seen in the lists of relevant rulings in Annex 2, the first overall trend during the Study Period is that the number of reported cases on public enforcement is lower than the number of private enforcement cases: in the period covered by the Study, the Consortium has identified 172 cases that fall within the definition of public enforcement provided in Section 1.4.3, and 594 cases of private enforcement of State aid rules. The number of private enforcement cases is thus more than triple the number of public enforcement cases listed in Annex 2. Nevertheless, as shown by Figure 1, the number of public enforcement cases has grown steadily, with a large number of cases reported in the year 2017.
This trend is also confirmed by the number of public enforcement cases per year per Member State (see Table 2).
While the Study covers the judgments ruled by national courts from 2007 to 2017, a limited number of judgments handed down in 2018 have also been included in the lists of relevant rulings in Annex 2. This factor explains the decrease in the number of public enforcement cases in the year 2018 shown by Figure 1 and Table 2.
From the data shown in Table 2, the Consortium notes that in 10 Member States no cases on public enforcement have been identified for the period covered by the Study. This may be explained not only by the fact that national follow-up litigation did not have to be invoked in order to secure recovery, but also by the fact that the Commission did not adopt any recovery decisions in relation to these Member States during the Study Period. In particular, the Commission has not adopted any recovery decisions in the relevant period in relation to Croatia, Latvia and Lithuania. This finding explains why no case of public enforcement of State aid rules has been identified in relation to these two Member States.
Secondly, from Table 2, the Consortium also observes a higher number of court rulings in cases of public enforcement of State aid rules in some ‘larger’ Member States (Italy, Spain and France) in comparison to some ‘smaller’ Member States. It is noteworthy that the annual number of public enforcement cases in the ‘larger’ Member States is not only high, but remains relatively constant across the reporting period, as confirmed by Table 2.
As mentioned above, the Study shows a higher number of private enforcement (594) than public enforcement (172) cases. A number of reasons can be put forward to explain the lower number of public enforcement cases compared to private enforcement cases, as discussed below:
- Direct applicability of the recovery decisions: aid recovery from the beneficiaries may well be accomplished without any further national court involvement. Many national courts, in fact, increasingly recognise the direct applicability of Commission decisions in their national legal order. This is apparent from the case summaries in Annex 3. For example, since the UK courts have formally recognised that a Commission decision is directly applicable in its legal order, it is no longer required for public authorities to bring a (civil action) of unjustified enrichment against the beneficiary to recover the aid received by way of an (unlawful) tax exemption (see Gunn – British Aggregates). Similarly, with the exception of fiscal aid, Spanish courts have also recognised the direct effect of Commission decisions.
- Specific legal framework governing recovery: as it is evident from the national reports, a number of Member States (e.g. Belgium, Spain, the Netherlands, Finland, Slovakia) have adopted legislation allowing specific or ad hoc recovery procedures to deal with recovery problems or simplifying existing enforcement procedures. In addition, Estonia is considering the adoption of such legislation. This may also reduce litigation and thus the involvement of national courts, as the potential for a variety of procedural challenges to a national recovery order should diminish.
As confirmed by the country reports, given that the adoption of the relevant national legislation is quite recent in most jurisdictions, the data presented in Annex 2 does not yet fully reflect the impact of specific or ad hoc State aid recovery legislation on the evolution of national court proceedings. The adoption of national recovery legislation is a recent trend that explains the limited number of public enforcement cases in the Study Period. In addition, as further discussed in Chapter 3, it could also be considered a best practice which facilitates the speedy implementation of recovery decisions.
It is worth noting that the peculiarities of fiscal aid may lead to the introduction of specific/tailored recovery procedures. The Spanish authorities, for example, rely directly on the enforceable character of the recovery decisions, save for fiscal aid. In the case of fiscal aid, an ad hoc recovery procedure has been introduced by Law 34/2015. The Law, which entered into force on 12 October 2015, regulates the procedures to be followed for the enforcement of decisions to recover State aid. This legislation has been developed by Royal Decree 1070/2017, of 29 December 2017. An ad hoc law to allow recovery of tax aid has also been adopted in Belgium. This trend is not uniform, however - the recently adopted Dutch law on aid recovery explicitly excludes tax measures from its scope.
Categories of aid measures challenged in public enforcement cases
A second trend observed in the reporting period covered by the Study is that the number of disputes reaching courts of last instance is relatively high (65 administrative; 38 civil/commercial). The highest percentage of cases are dealt with by administrative courts (38% last instance and 23% second to last instance courts).
Figures 2 and 3 show that administrative procedures are predominantly relied upon for the public enforcement of State aid rules in all Member States. Civil or commercial courts may become involved if the beneficiary is the subject of insolvency proceedings, or if the recovery procedure relates to the annulment of a contract or agreement between the public authority and the beneficiary (e.g. a sale of land or other assets).
Finally, as further discussed in Chapter 3, with the exception of the Irish High Court, no specialised courts or panels have been set up in the Member States to deal with public enforcement cases.
Figures 4 and 5 analyse the categories of aid measures challenged in public enforcement cases. The graphs suggest that the majority of cases result from tax rebates (18), grants (15) and loans (5), whereas private law measures such as concessions (2) or guarantees (1) account for only three cases. This finding explains why civil or commercial court proceedings are far less frequent (see Figures 2 and 3), especially in those Member States in which only public grants, tax breaks or more favourable loans than market conditions are at issue.
Economic sectors involved in public enforcement procedures
Figure 6 reflects a predominance of disputes involving aid measures in a number of sectors, such as manufacturing (11 cases), transport (9) and energy (5), with financial and insurance (4) as a notable category during the financial crisis. However, the range of sectors in which up to two cases have been noted is rather diverse.
Evolution of the degree of enforcement of the EU State aid acquis by national courts
Primacy of EU State aid rules recognised by national Supreme Courts
A trend that emerges from the case summaries (included in Annex 3) is that the higher courts of the Member States seem more likely to recognise the primacy of Union law and order aid recovery, overturning the lower instances.
The case Venezia/Chioggia provides a good representation of the consequences of the principle of primacy of EU State aid rules in national proceedings.
The majority of Supreme Courts of the Member States have no difficulty disapplying national limitation periods, as is shown in Italy by the TNT ruling.
A similar pattern emerges from the case summaries reported in Spain and France – countries that have reported a consistently high number of public enforcement cases over the period of this Study (see Table 2). The willingness of these courts to set aside national procedural barriers may reflect the depth of experience with State aid enforcement procedures in these Member States.
In the UK, the principle of loyal co-operation under Article 4(3) TEU was invoked in proceedings relating, albeit indirectly, to recovery procedures addressed to another Member State (i.e. Romania in the Micula case).
Categories of plaintiffs in public enforcement procedures
As shown by Figure 7, 62% of the plaintiffs in cases of public enforcement of State aid rules are aid beneficiaries and 30% are public authorities. From the case summaries, no case emerges in which a competitor is listed as a plaintiff; in one case the plaintiff was a political party (in Slovakia – although the case concerned a challenge to legislation on recovery methods as opposed to a recovery order as such).
A significant number of cases reported in Spain deal with fiscal measures. In most of the case summaries included in Annex 3, the claimants are the beneficiaries of the aid, challenging the national recovery order. Alternatively, plaintiffs also include regional authorities that have requested the annulment or suspension of fiscal measures adopted by other public authorities granting State aid.
Categories of defendants in public enforcement procedures
As shown by Figure 9, the majority of the defendants in the case summaries included in Annex 3 are public authorities (70%), whereas only 17% are beneficiaries. The number of competitors listed as defendants is obviously low (i.e. 4% of the total number of cases).
Locus standi issues
No issue concerning a denial of locus standi in public enforcement cases have been reported in the case summaries. This may be due to the relatively liberal rules on legal standing, as pointed out, for example, by the country report on France:
"A party will be able to bring an action concerning the enforcement of a recovery decision before the court if it has an interest in taking legal action. This means that any party directly or indirectly affected by the measure (i.e. addressee of the measure, competitor, public authority), and groups representing the interests of those who have been directly or indirectly affected by the measure (i.e. consumer’s association, trade union, etc.) can bring an action before the national courts concerning the public enforcement of State aid rules."
Interim measures and recovery orders enforced by national courts
Interim measures
The granting of interim measures to suspend a recovery order at national level is relatively rare, as shown from the list of relevant rulings in Annex 2 and illustrated in Figure 11. Only in five cases – that is 2% of the total number of cases reported – national courts have awarded a suspension.
The case summaries indicate that higher courts will be more reluctant to grant a request for suspension, as this would be contrary to the principle of primacy of Union law. For example, in Ryanair, the beneficiary’s request for suspension pending the outcome of national appeals procedures was denied, as the French court confirmed that Union law takes precedence over national procedural rights. Similarly, in the Greek export tax case, the constitutional objections to recovery and rights to request suspension were overruled by the highest court in Greece.
As the case summaries in Annex 3 explain, where requests for interim measures or suspension of a recovery order are at issue in national cases, this may reflect the complexities of litigation at EU level, especially where the Commission, the GC and subsequently the Court of Justice have taken different positions on the case. For instance, in the Valencian football case the Spanish High Court ruled that the lower instance court should not have decided on the adoption of the interim measure requested until the GC had ruled on the legality of such measure.
Nevertheless, there are some noteworthy exceptions where the national court has been concerned by alleged economic hardship and granted interim relief. In the case involving the Municipality of Milan, for example, the Italian court granted the interim relief, by suspending the recovery decision. Although the remedy represented a clear breach of Union law, the Italian court assessed the claim under generally applicable procedural rules, which require the presence of two conditions: (i) periculum in mora, and (ii) fumus boni juris. Accordingly, the court held that (i) the recovery could have jeopardised the financial stability of the Municipality of Milan, which would have had to reimburse a large amount of money within a short period. In addition, if the Municipality then claimed the amount from SEA (i.e. the beneficiary), the recovery could have led the beneficiary to bankruptcy. (ii) The claim was credible, as the recovery order was not addressed to the same entity defined as the beneficiary by the Commission decision. Nevertheless, it is worth noting that the ruling was later quashed on appeal.
Similarly, in the German Sanierungsklausel a request for an interim suspension pending further litigation before the CJEU was accepted by the lower tax court, as the taxpayer had established undue hardship.
Recovery and national rules on interest
With respect to the imposition of interest on the sums to be recovered, some lower courts have been reluctant to disapply national law, relying on procedural issues such as national limitation periods and rules on the imposition of simple as opposed to compound interest on appeal. On the other hand, as noted above, the higher courts of the Member States have usually recognised the primacy of Union law (e.g. Spain , Italy ) and thus required ‘full’ recovery, including compound interest. Reference is frequently made to the 2009 Enforcement Notice in this respect.
For example, the Spanish country report observes that the Spanish courts have confirmed the primacy of Union law over national law. In particular, the national legal expert mentions in the country report that Spanish courts have relied on primacy of Union law and Simmenthal case law in order to disapply the Spanish Civil Code. The latter, in fact, was often in conflict with the recovery decisions, either in relation to the limitation periods for recovery or in relation to the ranking of the credit to be recovered under national insolvency law.
Similarly, in the fiscal aid case, the Portuguese court adjusted the amount of interest due, as the delay in the collection of correct tax rate was held not to be the fault of the plaintiff.
Some notable departures with respect to the 2009 Enforcement Notice
As argued above in relation to interim measures and recovery of the interest, the national courts of the Member States have generally afforded remedies in line with the 2009 Enforcement Notice. However, the data collected as part of the current Study also show some notable departures from the 2009 Enforcement Notice:
- Failure to notify: although most courts did not accept a claim of failure on the part of the public authorities to notify the planned measure to the Commission as a defence, in a number of cases damages for failure to notify an aid scheme to the Commission have been addressed and have been held to be potentially warranted. Relevant examples to this regard are the Sardinia hotels case in Italy, and the Brandenburg case in Germany.
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Right to a fair hearing as a defence: in Álava, the Spanish Supreme Court annulled the relevant administrative order implementing the recovery decision as the right to a fair hearing had been denied to the defendant. Similarly, in most recent cases, the Spanish courts annulled the recovery orders due to a breach of the principle of legitimate expectations
As discussed in the Spanish country report in Annex 3, the Spanish Supreme Court has established that the recovery procedure must meet the basic procedural guarantees of hearing, motivation, determination of the amount, and indication of the appeals that may be lodged. Therefore, on the basis of this judicial precedent, the requests for reimbursement that are sent to the beneficiaries of the aid should provide for a period of ten days within which to make representations, specify the amount and interest to be paid, and indicate the appeals that can be made against them. The Spanish tax recovery legislation adopted in 2015 and amended in 2017 now provides for a number of specific procedural guarantees for the beneficiary. The failure to observe procedural rights may not, however, be fatal for recovery.
In France, although the recovery measures in question were annulled for failure to allow the beneficiary a fair hearing, the court recognised that such procedural defects can also be subsequently remedied by the adoption of a new recovery order, once the beneficiary has been heard by the public authority in charge of the recovery.
- Breach of legitimate expectations: in Sardinia hotels, Cagliari Court of Appeal, overturned the lower instance court. The Court of Appeal, departing from the principle of legitimate expectations under Union law, annulled the recovery order because the granting authority had breached the principle of legitimate expectations of the beneficiary with regard to the lawfulness of the State aid received. The aid to be recovered was lowered, as full recovery interest was no longer due. Instead, interest was due from the date of service of the recovery order (i.e. and not from the date when the aid was unlawfully granted), on the basis of national legal principles.
The role of CJEU preliminary rulings in public enforcement cases
In general, the courts of appeal and the courts of last instance have made extensive reference to CJEU jurisprudence. However, referrals to the CJEU were very rare during the Study Period. For instance, during the period covered by the present Study, the Spanish courts did not refer any request for preliminary ruling to the CJEU concerning public enforcement of State aid rules. Nevertheless, the Spanish courts have extensively referred in their rulings to CJEU jurisprudence. For instance, in Álava the High Court of the Basque Country rejected the claimant’s request to annul the administrative order enforcing the recovery decision in the case. By referring to the previous CJEU ruling in the case, the national court ruled that public authorities could not invoke the alleged legitimate expectations by the beneficiary to avoid the aid recovery. As noted in Figure 14, out of the total 49 cases analysed in Annex 3, only 5 involved references for preliminary ruling to the CJEU.
Mediaset represents an important example of the importance of the preliminary ruling procedure in the context of the recovery process. Following the CJEU preliminary ruling in the case, the first instance court annulled the recovery order and recalculated the aid amount, which was found to be equal to zero. Subsequently, the appeal court ordered national authorities to repay the amount of the aid already recovered. In particular, the appeal court argued that, in the light of the economic analysis of the independent expert appointed, Mediaset obtained no advantage from the aid, because the additional profit in terms of new costumers resulting from the subsidisation of the purchase of decoders was found to be equal to zero. As pointed out in the Italian country report, the CJEU preliminary ruling in the case was relied upon not only by the referring court to find that no recovery was required in the case, but it has been frequently referred to in subsequent national rulings.
Similarly, the French Council of State’s two requests for rulings in the long-running CELF litigation have created major precedents in France. In particular, following the first CJEU preliminary ruling in the case, the Council of State ruled that the French authorities had to recover the aid received by CELF and the corresponding interest for the entire period in which the unlawful aid had remained in force, in spite of the three previous Commission decisions considering the aid compatible with the internal market, later quashed on appeal by the GC. In addition, in its second preliminary ruling in CELF, the CJEU further clarified that the previous Commission decisions could not be considered as exceptional circumstances that justified the lack of aid recovery.
The recent CJEU preliminary ruling in Eesti Pagar represents another important legal development, which will have an impact on the enforcement of State aid rules at the national level in years to come. In the dispute, Eesti Pagar (i.e. the aid beneficiary) challenged the recovery order adopted by Enterprise Estonia (i.e. the granting authority), which ordered recovery of the investment grant (with interest) that it had previously paid out to the beneficiary due to the lack of incentive effect of the aid measure, and thus its breach of GBER conditions. As discussed above, the case falls within the definition of public enforcement in the context of the present Study: although the Commission did not adopt any decision in the case, the case concerns a dispute before national courts challenging an aid recovery order. In 2016, the Estonian Supreme Court sent the case back for re-assessment to the court of appeal, but at the same time referred a request for a preliminary ruling to the CJEU. As noted in the Estonian country report, following the recognition by the CJEU of the obligation for “all the authorities of the Member States” (i.e. administrative authorities, not only national courts) to recover unlawful aid in breach of GBER, Estonia will probably amend the Estonian Competition Act to introduce a general obligation for granting authorities to recover any unlawful aid. The relevance of the CJEU preliminary ruling thus goes beyond the dispute at stake in the national proceedings.
Finally, mention should be made of the request by the Supreme Administrative Court of Portugal for further guidance on a public service compensation calculation (PSO/transport). In line with the CJEU preliminary ruling in the case, the Supreme Administrative Court pointed out the importance of introducing a system of accounting separation in the companies providing a SGEI, in order to differentiate the activities where the firm could benefit from an aid, in order to perform a SGEI, from the other activities carried out in a competitive market.
The low percentage of preliminary ruling requests could, in part, be explained by the availability of the co-operation tools - further discussed in Chapter 4. In particular, on the basis of the cases discussed in Annex 3, the Consortium notes that a Commission opinion was solicited by national courts in a number of cases: Hellenic Shipyards in Greece and Sheep in the Netherlands. Finally, Commission amicus curiae observations were relied upon in Micula in UK, in Hellenic Shipyards in Greece and in Ryanair in France. It is worth noting that in these cases there were no further requests for preliminary rulings from the CJEU.
Main difficulties faced by national courts in public enforcement cases - examples drawn from collected data
The case summaries and country reports included in Annex 3 have revealed a number of difficulties faced by national courts in cases of public enforcement of State aid rules.
Difficulties in calculating the recovery interest
Difficulties in respect of calculation of the recovery interest, as established in Commission Regulation (EC) No 794/2004 and amended by Commission Regulation (EC) No 271/2008, have led a number of Member States to include specific provisions concerning the recovery interest in the legislation on aid recovery. As discussed in the country reports in Annex 3, the recovery legislation adopted in the Netherlands and Slovakia includes specific provisions on the calculation of the recovery interest. Similarly, Spain included similar provisions in the recovery legislation after the Supreme Court criticised the absence of a specific national procedure to recover fiscal State aid.
Complications for recovery in cases where the beneficiary is insolvent
National legislation may affect the position of the State as creditor or impose time limitations on lodging a claim in bankruptcy proceedings and prevent full recovery (e.g. SCM case in France), or restrictions on the type of claim that can be lodged. In SKL-M, although the German court denied full recovery as the public authority had followed the wrong procedures to file a claim against the insolvent aid beneficiary, the court ruled that the claim could be re-submitted to the insolvency trustee. Finally, it is worth noting that not all Member States have recognised national procedural insolvency rules as a barrier to full recovery (see for example, the Valencian football cases).
Identification of beneficiary after insolvency
The identification of the beneficiary after insolvency may prove time-consuming and result in lengthy proceedings, as the Plastini Operations case in Belgium well shows. In this case, the court conducted in-depth analysis and ordered an expert report to ensure that the price paid by company acquiring shares of a past aid beneficiary had paid the market price, and therefore no aid had to be recovered from the buyer.
In Finland, the Supreme Court rejected in full the plaintiff’s arguments that requirements of a compulsory restructuring programme, following insolvency and the creation of a successor company, could be a legitimate obstacle to recovery. The Court held that Union law prevailed over national measures.
In Venezia/Chiogga, the Italian Council of State rejected a claim that the relevant public authority should have carried out additional research in addition to the Commission decision to establish the beneficiaries from whom State aid should have been recovered.
In Germany (SKL-M), the recovery was partly denied, as appropriate procedures governing insolvency had not been followed, although the court also ruled that the public authority could re-submit the claim after having followed the correct procedures.
Alleged lack of clarity of the recovery decision and the recovery order
In their rulings, national courts may be requested “to clarify” a number of alleged unclear aspects in the Commission decision and the national recovery order:
- ‘Quantum’ of the aid to be recovered: in France (tax), a national recovery order was annulled, as the beneficiary was not in the position to calculate the amount due. In the ruling, the court held that the public administration could correct the defect and issue a new administrative decision.
- Interest (simple v. compound): although some courts have rejected recovery of interest based on compound interest calculation (France), in Spain (interest free loan) the Supreme Court ruled that compound interest had to be recovered and set aside relevant provisions of Spanish civil and administrative law.
- Identification of the time period for the aid recovery: in Alcoa, the Regional Administrative Tribunal found that the recovery order issued by the Italian Electricity Industry Equalisation Fund against Alcoa (i.e. granting authority) was partially unlawful for the period from 19 January 2007 to 19 November 2009. The national court noted that the Commission decision only explicitly referred to the incompatibility of the aid from 1 January 2006 to 18 January 2007. Consequently, the national court partially annulled the recovery order, since the order extended the recovery obligation beyond the period mentioned in the Commission decision.
Lack of clarity on recovery while actions for annulment are pending against a recovery decision
One of the main challenges faced by national courts concern the enforcement of a recovery decision while the latter is pending annulment at the CJEU. In most of the cases summarised in Annex 3, the national court has rightly enforced the Commission decision, in spite of the pending proceedings at the CJEU. For instance, in CELF, the French Council of State did not suspend the recovery procedure in spite of the complexity of the proceedings (i.e. three Commission decisions were annulled on appeal by the GC). The Council of State dealt with the issue by referring two requests for preliminary rulings to the CJEU.
In a limited number of cases reported in Annex 3, however, the national courts suspended the enforcement of the Commission decision while actions for annulment were pending. In Sanierungsklausel, for instance, Finance Court Münster temporarily suspended the Commission decision until the final ruling of the CJEU, since it had “serious doubts” as to the application of the selectivity criterion in the Commission decision and since the recovery would have caused irreparable damage to the aid beneficiary. Therefore, in view of the Atlanta and Zuckerfabrik cases, the national court temporary suspended the enforcement of the Commission decision, waiting for the final ruling by the CJEU in the case. However, it is worth noting that this type of case represents a minority among the cases summarised in Annex 3 and, although the ruling of the lower court was appealed, that appeal was withdrawn following the bankruptcy of the beneficiary.
Suspension of national recovery order during the appeal proceedings
Under Article 25 of the Polish Act on State Aid Procedure, the enforcement of the recovery order enforcing a Commission decision can be suspended while the appeal is pending before the national courts. Similarly, Article 12 of the General Administrative Procedure Act in Croatia provides that an appeal against an administrative act (e.g. recovery order) has suspensory effect in relation to its execution. Under Article 278 TFEU, “actions brought before the CJEU shall not have suspensory effect”. Therefore, the enforcement of the Commission decisions cannot be suspended while appeals are pending before the GC/CJEU. However, the Croatian and Polish procedural rules refer to an appeal against a recovery order enforcing a Commission decision. The concerned Member States could argue that in view of the principle of procedural autonomy, such procedural rules are compatible with Union law as they aim at safeguarding the legitimate expectations of the aid beneficiary during the court proceedings. However, it could be contended that such rules represent an obstacle to the timely enforcement of recovery decisions – i.e. they should be disapplied by national courts since they hamper the effective enforcement of Union law. The fact that the suspension refers only to the national recovery order does not alter this notion, since it has the effect of jeopardising the enforcement of the Commission decision.
Recovery ordered by national authorities without Commission intervention
A number of selected rulings concern the recovery of State aid ordered by national authorities without Commission intervention.
These rulings concern, for example, recovery proceedings that do not follow a recovery decision, but rather a recovery order adopted by a national authority. One such case has been identified in Romania, where the aid recovery was treated as a sanction/penalty for misuse of EU structural funds.
Similarly, in the Sheeps case, the beneficiary challenged the administrative decision of the Dutch State Secretary to modify the aid scheme previously approved, by reducing its overall size to comply with the de minimis Regulation. The State Secretary based its decisions on possible concerns that the Commission would not have approved the aid scheme if the latter had been notified.
Finally, in the Broadcasting television case, the Austrian Communication Office ordered ORF (i.e. Austrian public broadcaster) to recover the unlawful aid received. The Communication Office justified the recovery order on the basis of domestic law. In addition, it argued that the order was compatible with a previous Commission decision in a similar case. In these three cases, therefore, the recovery took place because of the autonomous initiative of national authorities, while the aid was not notified to the Commission.
The interesting aspect of these cases is that the public authority has justified the recovery order to avoid a possible recovery decision – i.e. it is an example of de-centralisation of State aid enforcement. The cases may be seen to anticipate the recent Eesti Pagar ruling by the CJEU. In the judgment, the CJEU stressed that national authorities have to take “…all appropriate action, in accordance with their national law, to address the consequences of an infringement of the last sentence of Article 108(3) TFEU” (i.e. breach of the standstill obligation). In particular, such duty falls on “all the authorities of the Member States” - i.e. not only national courts, but also administrative authorities. In Eesti Pagar, the CJEU thus recognised the duty of national administrative authorities to order the recovery of an unlawful aid even in the absence of a previous Commission decision.
2.2.2. Private enforcement by national courts
Aggregated statistics at EU level
Growth of the number of private enforcement cases
As mentioned in the previous section, the Study covers judgments handed down by national courts from 2007 to 2017. However, a number of judgments handed down in 2018 are also included in the Study where these cases were of particular relevance. This factor explains the decrease in the number of private enforcement cases in the year 2018 shown by Figure 15 and Table 3.
Figure 15 and Table 3 show the growth of the number of private enforcement cases in the period 2007-2017. In particular, between 2007 and 2017, the number of private enforcement cases has tripled. Such growth took place both in absolute terms and in comparison with public enforcement cases. Finally, Table 3 shows that this trend is generally uniform across all Member States.
Possible explanations for the growth of the number of private enforcement cases include the following:
- Country-specific factors: as mentioned by the country reports in Annex 3, in Finland and Sweden, citizens can challenge the acts of municipalities leading to an advantage for an undertaking, as the granting of unlawful aid is, in substance, considered a form of maladministration. An active level of participation in the public administration thus fuels private enforcement actions. In addition, in the UK and in the Netherlands, the low number of recovery decisions limited litigation in the field of State aid rules to private enforcement cases.
- Factors specific to public enforcement and recovery proceedings: Under Article 263(1) TFEU, Commission decisions can only be challenged before Union courts, with national courts being able to grant interim measures in exceptional circumstances: as discussed in Section 1.2, national courts can suspend the aid recovery only if the conditions mentioned in the Atlanta and Zuckerfabrik cases are fulfilled. This case law results in a limitation in the possible grounds on which a public enforcement action can rely, which in turn means there is less interest in bringing public enforcement litigation. The pay-offs of a private action case, by contrast, can be significant. Nevertheless, a number of country reports in Annex 3 have stressed that parties often prefer to submit a complaint to the Commission rather than starting court proceedings, since the outcome of private actions can be very uncertain and costly.
- Cultural factors specific to private enforcement: companies and their advisors are more and more aware about State aid potentially being used as a ‘sword’ or as a ‘shield’ in a competition-related litigation. In this connection, the country reports in Annex 3 show that in the large majority of Member States, national courts extensively refer to EU acquis in their rulings. Given that judgments tend to reflect the arguments brought by the parties, this finding buttresses the point about increased awareness of State aid rules among practising lawyers.
- Impact of the 2008 financial crisis: as noted in Figure 20, most of the cases of private enforcement discussed in the case summaries in Annex 3 concern the financial and insurance sectors. Therefore, it is plausible to infer a correlation between the increase in the number of private enforcement cases pointed out in Figure 15 and Table 3, and increased litigation in national courts in the post-2008 financial crisis. In the aftermath of the financial crisis, in fact, the majority of Member States put in place a number of aid measures to safeguard banks and financial institutions. Therefore, the increase in the number and size of State aid measures may have contributed to the substantial increase of private enforcement cases in the first half of 2010s. A number of case summaries in Annex 3, in fact, concern private enforcement claims challenging aid schemes granted by Member States after the 2008 financial crisis.
- Relevant procedural rules: In a number of Member States, lodging a claim before a national court in State aid matters is not a parallel track to other types of remedies. In particular, when competitors of the beneficiary choose to file a complaint with the Commission, or with the national administrative body, they usually do not institute judicial actions before the courts.
Categories of courts hearing private enforcement cases
In all Member States, private enforcement of State aid rules follows generally applicable national procedural rules. In particular, in the absence of specific rules, cases are distributed among civil and administrative courts according to general legal principles. In most of the Member States, administrative courts are competent when the claimant challenges an act of the public authority, while civil/commercial courts are competent when the claimant is seeking damages.
In certain States, criminal courts could also hear State aid cases, when the grant constitutes fraud (e.g. Germany). In other instances, aid granted through statutory laws can be challenged before Constitutional Courts (e.g. Belgium and Italy).
Italy is the only country having ad hoc rules for determining the competent court to hear State aid cases. In particular, administrative courts have now exclusive jurisdiction to hear cases of public and private enforcement of State aid rules. However, the case law of the Italian Supreme Court has carved out an exception for follow-on damages cases, and it cannot be excluded that stand-alone cases might also be assigned to civil courts.
In Spain, national law provides for an ad hoc recovery administrative procedure applicable to the recovery of State aid granted in the form of grants, rather than fiscal measures. The competent authority for the recovery is the granting authority, which could start the procedure ex officio or at the request of other authorities or of a complaint. Interested parties have the right to be heard during the procedure. The refusal of the administration to set in motion this process can be appealed before administrative courts.
Last instance administrative courts hear most of the private enforcement cases. In particular, Figures 16 and 17 show that in certain countries, private enforcement cases have been ruled on exclusively by administrative courts. The prevalence of administrative high courts over civil courts is consistent with the trend in the remedies awarded: there are more recovery actions, falling generally within the competence of administrative courts, than damages claims. This trend is further discussed in the next section.
Categories of aid measures challenged in private enforcement cases
Figures 18 and 19 show that, contrary to the public enforcement cases, grants and tax rebates do not represent the main aid measures challenged in the private enforcement cases summarised in Annex 3. It is worth noting that most of the aid measures discussed in the case summaries could not easily be classified by the national legal experts and thus fell within the category ‘others’ (i.e. 43% of the cases). This finding is not a surprise: in the context of the Study, private enforcement cases refer to claims concerning the breach of the standstill obligation under Article 108(3) TFEU. Private enforcement cases, therefore, are likely to concern specific measures where the fulfilment of the cumulative conditions under Article 107(1) TFEU is not self-evident, and thus in the context of court proceedings, it can be debated whether the measure indeed represents a new aid that should have been notified to the Commission.
Economic sectors involved in private enforcement procedures
As regards the economic sectors involved in cases of private enforcement, Figure 20 shows that some sectors appear to be more prone to litigation than others, with financial and insurance activities, transport and storage, and energy having a similar high score.
Possible explanations for this trend include:
- Legacy: for all three sectors (i.e. financial and insurance activities, transport and storage and energy), the State has traditionally played a leading role, either because these industries have been gradually liberalised or because of public policy reasons (e.g. protection of depositors in the banking sector).
- Financial crisis: as discussed above, the increase in the number of aid measures granted by the Member States to save or stabilise financial institutions after the 2008 financial crisis might explain why the majority of private enforcement cases took place in the financial sector.
- Green technologies: during the last few years, the majority of the Member States have granted aid measures to support the development of green technologies in the energy and transport sectors, in order to comply with environmental objectives agreed at EU level. A number of case summaries in Annex 3 deal with claims by competitors challenging this type of aid measures. This trend might explain the relevance of energy and transport sectors in private enforcement cases of State aid rules.
- Services of General Economic Interest (SGEI): besides the support of green technologies, the large number of private enforcement cases in the transport and energy sectors might also be explained by the aid granted by a number of Member States to support SGEI. In a number of case summaries in Annex 3, in fact, the claimant challenged the aid measures granted by a Member State to compensate the provider of a SGEI.
Evolution of the degree of enforcement the EU State aid acquis by national courts
Categories of plaintiffs in private enforcement procedures
As regards the categories of plaintiffs, the enforcement of State aid rules was triggered by competitors of the beneficiaries in 36% of the cases, as shown by Figure 21. For the other actions, the data shows that in 14% of the case summaries, the plaintiff was the aid beneficiary; in 18%, public authorities acted as plaintiffs. Finally, there is also a significant percentage of cases in which the relationship between the plaintiff and the aid is unclear or cannot be attributed to one of the standard categories (i.e. beneficiary/competitor/public authority).
As shown by Figure 22, the distribution of cases according to categories of plaintiffs is not uniform throughout different jurisdictions: in a number of countries (e.g. Italy, Slovenia, Bulgaria, Hungary, Lithuania and Poland), none of the claimant in the case summaries included in Annex 3 were competitors. By contrast, in Germany, Spain, Belgium and Austria, the majority of private enforcement claims were brought by competitors.
The data on plaintiffs indicate that:
- Recovery actions triggered by competitors represent approximately one third of the total actions sampled: one possible explanation for the scarcity of competitors’ actions is that many private enforcement cases may be at the borderline between public and private enforcement (this also has consequences regarding the nature and award of remedies, as further discussed in the following section).
- Tax cases (fiscal exemptions, or other forms of tax measures and benefits) are significant: in these cases, the tax authority (or other public entity) starts an action for recovery of unlawful aid on the premise that the tax benefit was granted in breach of the standstill obligation.
- Beneficiaries of aid ask for damages: in a number of cases summarised in Annex 3, the beneficiary, rather than a competitor, claimed damages from the State granting the aid. This was the case, for instance, in Sardinia hotel, a case that was pending on appeal at the Italian Supreme Court at the time of writing the Study. In this type of case, the beneficiary usually puts forward arguments concerning the breach of its legitimate expectations to justify the damages. In other words, the beneficiary claims compensation when the State authorities initially grant aid and later order the aid recovery, since the measure breaches State aid rules. In its recent ruling in Eesti Pagar, however, the CJEU has pointed out that the recovery of unlawful aid by State authorities does not breach the legitimate expectations of the beneficiary; an unlawful aid measure does not generate any legitimate expectation for the beneficiary, which has the duty to check in advance that the aid measure complies with the standstill obligation under Article 108(3) TFEU. In view of the recent CJEU ruling in Eesti Pagar, it is doubtful that damages claims started by the aid beneficiary due to the breach of the principle of legitimate expectations will be successful in the future.
Categories of defendants in private enforcement procedures
As regards the categories of defendants in private enforcement cases, unsurprisingly, the vast majority actions are brought against public authorities. In particular, in 60% of the cases, the defendant is a public authority, as shown by Figure 23. In 21% of the cases, the defendant was the beneficiary.
Figure 24 shows that in most countries the defendant was a public authority in the majority of cases. Exceptions include countries where public authorities were defendants in all the selected rulings, and countries where, in the majority of cases, the defendants were the beneficiaries.
Co-existence between private enforcement and complaints to the Commission
A number of country reports pointed out that lodging a claim before a national court in State aid matters is not a parallel track to other types of remedies. In particular, when competitors of the beneficiary choose to file a complaint with the Commission, or with the national administrative body, they usually do not institute judicial actions before national courts. Finally, as further discussed in the next section, since remedies are rarely awarded in private enforcement cases, parties might prefer submitting a complaint to the Commission in relation to an unlawful aid, rather than starting a legal action in a national court.
Stand-alone v. follow-on actions
Most of the cases of private enforcement are stand-alone actions, but some cases of follow-on actions have also been reported in the case summaries in Annex 3. These claims are brought by competitors of the beneficiary after the Commission issued a recovery decision.
For instance, in the context of the French CELF saga, competitors of the beneficiary brought damages claims. One of the cases is still pending; the court has requested more information from public authorities and from the Commission, in order to investigate the causal link with the damages alleged by the claimant.
Similarly, after the Commission’s recovery decision in SEA Handling, one of the competitors of the beneficiary sought compensation before a national administrative court. The Italian Supreme Court rejected the claim on procedural grounds, since the follow-on damages action should have been lodged with a civil court.
In Slovakia, a number of follow-on actions took place linked to Frucona case. In particular, a number of public authorities which were obliged to write-off their claims during insolvency proceedings challenged the write-off as constituting State aid. These cases mostly concerned the issue of whether accepting such a restructuring plan was compliant with the private creditor test.
Remedies awarded by national courts - comparison with the 2009 Enforcement Notice
Low number of remedies awarded
Figure 25 and 26 show that national courts rarely award remedies in cases of private enforcement of State aid rules. This trend is consistent across all jurisdictions, indicating that country-specific factors do not tend to play a role.
Explanatory factors for the widespread failure to obtain remedies include exogenous factors. For instance, in several cases the country reports indicated that the court rejected the claim because it was not well-founded. One interpretation of this finding is that the case simply did not involve the grant of aid. Another possible explanation is that either the court misinterpreted the law and/or the plaintiff did not construct the case well. However, the data also shows that courts (at least last instance courts) apply the law correctly. Equally, the case summaries in Annex 3 show that, with some variance between countries, knowledge of State aid rules among lawyers is adequate. As a consequence, in terms of exogenous factors, the better interpretation to explain the lack of remedies awarded by the national courts is that the measures brought to them did not constitute State aid.
In addition, a number of factors endogenous to the cases summarised in Annex 3 may also explain the low number of remedies awarded by national courts:
- Nature of the claim: first, as mentioned above, in the majority of the selected judgments, the plaintiff was not the competitor of the beneficiary. In particular, when the plaintiff was a beneficiary, the remedy was often the payment or concession or transfer of goods by public authority. In other cases, the plaintiff was the public authority arguing the presence of unlawful aid in order to obtain the restitution of the amount already paid. Sometimes, public authorities are forced to make a payment to the beneficiary by lower courts, and then have to challenge this decision before upper courts, based on State aid grounds. Therefore, one of the reasons for the large number of cases in which private enforcement was dismissed is that the plaintiff brought an action which actually sought to extend the aid. Alternatively, the case involved a tax measure and the lack of remedies was due to specific reasons linked to tax law.
-
Burden of proof: for recovery actions brought by competitors, or in other cases where the existence of State aid is directly related to the award of a remedy, the low number of remedies may depend on the complexity of the notion of State aid, made up of a number of constituent – cumulative – elements. For each of them, the plaintiff in a private action case bears the burden of proof. In turn, the level of difficulty of meeting the burden of proof may be linked to the type of measure. For instance, showing ‘advantage’ for a capital increase in a company where the sole or majority shareholder is a State entity may not be straightforward, involving a rather broad test. Similarly, some cases the advantage may stem from obligations imposed on all undertakings in a given sector. However, depending on the structure of the obligation, the measure may or may not involve State resources.
This explanation would be consistent with the type of measure being challenged. As Figure 18 shows, grants and subsidies, which are in theory the ‘easiest’ type of measure in terms of burden of proof as to the aid nature, only account for 24% of types of aid challenged in private enforcement cases.
Overall, the explanation for the low number of remedies identified in the present Study may result from a combination of both exogenous and endogenous factors. In particular, it is plausible that some cases might have been genuine cases of non-aid, for example, due to the lack of State resources – i.e. exogenous factors. On the other hand, in terms of endogenous factors, it is worth mentioning that proving the State aid nature of a given measure involves a high burden of proof, which many plaintiffs have so far found too challenging to discharge.
Interim measures
There are a few cases in which the plaintiff succeeded in the request for an interim measure to suspend the implementation of an aid measure. For instance, in the Spanish case regarding the payment of the tax on large retail establishments, the Supreme Court found errors in the reasoning of the lower courts that rejected the claim for interim measures. The Supreme Court found that the presence of aid and that all requirements to grant the interim measure were met, including the "appearance of a prima facie case". The Court thus annulled the order of the lower court and granted the suspension of the payment of the tax, subject to the lodging of security.
The reasons underlying this trend stem from the legal standard for awarding interim measures, which is somewhat similar across all Member States: first, the plaintiff needs to show a prima facie case, as well as the presence of urgency and irreparable damage. Given that showing the aid nature of a measure is difficult in a procedure on the merits, the burden of proof becomes an almost insurmountable obstacle in summary proceedings.
Another strong factor militating against granting of an interim measure is the weight given to public interest in the balancing test. State measures are almost by definition linked to a public interest, which systematically trumps the interest of a single undertaking.
Finland seems an exception in relation to this trend, since the country report mentions that obtaining interim measures is “not rare”. However, this might also be due to the fact that challenging an aid measure might be considered a tool of ensuring a good public administration, as discussed above.
Prevalence of recovery over damage actions
In the vast majority of the case summaries included in Annex 3, when the courts awarded a remedy, it was in the form of recovery of the unlawful aid. In most Member States, the recovery of unlawful aid is the consequence of the act enshrining the aid being invalid, for breach of Article 108(3) TFEU. Therefore, the actions are structured as annulment actions against the act granting the aid; in such context, the recovery of the unlawful aid from the beneficiary thus follows from the annulment.
Only in six relevant rulings listed in Annex 2 were damages successfully awarded by national courts. All these cases involved French courts. A good example of the challenges faced by national courts in awarding damages due to a breach of the standstill obligation is represented by the Corsica Ferries case.
Presence/absence of parallel Commission investigations.
National courts are more open to awarding remedies when the Commission opens a formal investigation or even makes an informal communication. For instance, in the context of a relevant case in Spain concerning the transition to digital television, the competitor of the beneficiary obtained from the court an interim measure while an investigation was pending before the Commission.
Finally, Austria and Germany display two special features: if the aid is enshrined in a contract, the contract becomes null and void in case of breach of Article 108(3) TFEU. In addition, it is in theory possible (although there are no reported cases in Annex 3) for a judge to find that the aid beneficiary was liable for damages in a private enforcement case if the beneficiary was also responsible for the lack of notification to the Commission. In particular, beneficiary undertakings could be considered liable - according to general tort law principles – when their behavior has an impact on national authority’s choice not to notify the aid, thus contributing to the breach of State aid rules.
In the Netherlands, the Supreme Court found that a guarantee has to be considered null and void if (i) it constitutes unlawful State aid, (ii) its annulment can restore the competitive situation which existed before the guarantee was granted and (iii) if there are no less onerous procedural measures to restore competition.
The role of CJEU preliminary rulings in private enforcement cases
Figure 27 shows that in 13% of the case summaries the national court referred a request for a preliminary ruling to the CJEU. However, on the basis of the information gathered at national level, it can be said that the situation is not uniform across the Member States:
- In Belgium, France and Italy, courts seem particularly active in referring requests for preliminary rulings. A possible explanation is that these countries have a tradition of direct State intervention in the economy.
- Based on the information in the country reports, national courts in Portugal and Ireland do not seem to be particularly keen to refer requests for preliminary rulings. This finding may explain the low number of CJEU preliminary rulings concerning private enforcement State aid cases identified in Annex 3.
- In Poland and Germany, the number of preliminary rulings in cases of private enforcement of State aid is relatively low, but it has been steadily increasing.
- In the Netherlands, despite the relatively high overall number of preliminary rulings to the CJEU, few preliminary rulings regarding private enforcement have been reported. To a certain extent, this could potentially be explained by the use of the Commission cooperation tools by Dutch courts. According to the findings in this Study on the basis of the case summaries, in a few rulings it seems that judges preferred to ask for a Commission’s opinion under Article 29(1) of the State aid Procedural Regulation, rather than referring a request for a preliminary ruling to the CJEU.
- In Spain and Austria, the preliminary rulings requested by national courts seem to have primarily concerned the interpretation of the notions of advantage and selectivity with regard to fiscal measures.
- In Sweden, it seems that national courts are sometimes reluctant to refer requests for preliminary rulings in order to avoid delays of the court proceedings.
- In the UK, case law suggests that courts do not feel the need to refer requests for preliminary rulings, as the EU acquis seems to be sufficiently developed to assess whether a measure constitutes aid or not.
Finally, on the frequency of citations/references to the EU acquis in the national rulings, national judges generally tend to quote/refer extensively to the EU State aid acquis. However, a few exceptions have been identified in the case summaries in Annex 3:
- According to the country reports in Annex 3, national judges in Poland and Portugal seem reluctant to quote soft law, such as Commission Guidelines and Communications. This can be due to formal reasons, as soft laws have no equivalence in the national hierarchy of norms.
- In Finland, the Local Government Act obliges municipalities to take into account State aid rules, especially in the sale and lease of real estate and in the imposition of SGEI obligations. As a consequence, the judgments often refer to compliance with the Local Government Act rather than Union law. However, this trend seems to apply to lower courts, as the Supreme Administrative Court applies State aid rules extensively.
- In Sweden, the majority of cases are started by natural persons against municipalities. The prevalence of individuals without the help of specialised lawyers as plaintiffs has consequences on the content of the arguments, which in turn shapes the judgments: the rulings tend to be rather concise, because plaintiffs rarely present elaborate arguments with references to the relevant EU State aid acquis.
Main difficulties faced by national courts in private enforcement cases - examples drawn from the collected data
Definition of ‘aid’
Even if national courts are generally aware of the EU acquis, some country reports stress that national courts face a number of difficulties in applying the legal notion of ‘aid’ to the case.
Examples of cases where national courts face difficulties in applying the different aspects of the concept of State aid under Article 107(1) TFEU:
- Concept of ‘undertaking’: in a Lithuanian case originated in the context of insolvency proceedings, the plaintiff claimed that the inclusion of the defendant’s debt in the higher ranking of creditors amounted to State aid. The Court of Appeals of Lithuania rejected this claim, since the defendant was a State-owned company which provided obligatory insurance of all deposits held in banks registered in Lithuania. As such, it could not be considered an ‘undertaking’ under Union law.
- Similarly, in an action for damages brought by the competitor of the beneficiary in Denmark, the plaintiff claimed that a national agency had received unlawful State aid from the Danish State regarding the public financing for the composition, updating and supply of digital maps. The activities of the agency were carried out under the Danish law implementing EU legislation. The national court concluded that the activities of the Agency constituted the exercise of public authority tasks and not an economic activity. Therefore, there was no aid and the claim was rejected.
- Interpretation of GBER or de minimis Regulation: a German court dealing with the question of the existence of aid regarding the reduction of the rent paid by a German gym which was below the market price found that GBER could not be applied retroactively. The aid could fall within Article 55 GBER concerning aid granted to sports infrastructures. However, as the measure was introduced before the adoption of the GBER, it should have been notified to the Commission. The Court thus rejected the claim of the beneficiary.
- Application of the Market Economy Operator Principle (MEOP): other cases show the difficulties faced by national courts either in dealing with the MEOP test or in determining the market value in cases of sale/leasing of real estate. For instance, in a case in Slovakia, the Social Insurance Agency requested the national court to set aside the restructuring plan of an insolvent debtor, because it imposed a write-off of previous debts which constituted unlawful State aid. The Court upheld the claim, finding that the Social Insurance Agency may have obtained a higher ranking in the insolvency proceedings. Thus, the write-off of the debt was not MEOP compliant. Similarly, in a German dispute, the plaintiff and the defendant disagreed on the correct method to evaluate the market price of agricultural land. The court emphasises that the concept of market value under State aid rules represents any “achievable" price, namely the price that a private investor acting under market conditions could have fixed.
- Application of the Altmark criteria: a number of national courts experienced difficulties with the notion of advantage in cases involving Services of General Economic Interest (SGEI), as well as with the application of Altmark jurisprudence. For example, in a Finnish case, a competitor claimed that the compensation paid to the rescue departments constituted unlawful State aid. The first instance Administrative Court found that emergency medical services had to be considered SGEI and thus assessed through Altmark criteria. In contrast with the view of the court of first instance, the Supreme Administrative Court concluded that emergency medical services were not SGEI, due to special legislative obligations imposed on the rescue departments regarding the provision of emergency medical services. Therefore, such operators were not comparable with other service providers offering similar services on the market. On the other hand, the measure was found not to be selective in the meaning of Article 107(1) TFEU and the rescue departments were not considered to be undertakings. As a result, the claim to suspend the implementation of aid was rejected.
2.3. Evolution of the findings
This section aims at comparing the trends identified in Section 2.2 with the main
findings of the 2006 State Aid Study by a consortium of law firms on behalf
of DG Competition. In particular, while Section 2.3.1 provides a short summary of
the scope and the main findings of the 2006 State Aid Study, Section 2.3.2 draws a
comparison between the main findings of the 2006 State Aid Study with the trends
identified in Chapter 2.
The Consortium regards the 2006 State Aid Study as the most comprehensive
overview (i.e. until the present Study) of the enforcement of State aid rules
by the national courts of the Member States. Therefore, the Consortium has
relied on the 2006 State Aid Study as a benchmark to assess the findings of
the present Study. In this section, the Consortium has briefly summarised
the main findings of the 2006 State Aid Study and drawn a comparison with
the main quantitative and qualitative trends identified in the present Study.
2.3.1. The 2006 State Aid Study
In 1999, the Association des Avocats Européens carried out the first study on
the enforcement of State aid rules by national courts on behalf of the Commission.
In March 2006, a consortium of law firms including Jones Day, Lovells and
Allen & Overy published on behalf of DG Competition a more comprehensive
Study on the enforcement of State aid rules by national courts.
The 2006 State Aid Study covered the 15 Member States that had joined the EU before 2004.
Secondly, it covered both public and private enforcement of State aid rules.
In particular, in relation to public enforcement, the Study focused on the
analysis of national procedural rules and court rulings in five Member States
(i.e. Germany, France, Italy, Spain and Belgium). From a temporal point of view,
the Study covered the period 1999-2005.
The 2006 State Aid Study was completed by an ‘update’ in 2009, which covered
the national judgments issued in the period 2006-2009. In addition, the 2009
Study expanded the geographic scope of the previous research to 27 Member States.
In particular, the research covered the ‘new’ Member States that had joined
the EU in 2004 and 2007 in relation to the decisions adopted by the
State Aid Monitoring Authorities established in these countries during the
EU pre-accession period.
The 2006 State Aid Study, as updated in 2009, identified the following main
findings in the enforcement of State aid rules by national courts:
- Increase in the number of State aid rulings: The Study highlighted an increase
in the number of national rulings dealing with State aid rules:
from 116 cases recorded in 1999 to 357 rulings identified in 2005.
In addition, the 2009 Update identified additional 305 cases in the period 2006-2009.
- Prevalence of cases of public enforcement of State aid rules:
The Study mostly identified cases dealing with the implementation of recovery
decisions, while cases concerning private enforcement of State aid rules were
extremely rare.
- Concentration in a few Member States: From a statistical point of view, the 2006
State Aid Study noted that the cases of public enforcement of State aid rules
were mostly concentrated in France, Germany and Italy. By contrast,
in the majority of the other Member States, especially those who joined the
EU in 2004 and 2007, no State aid rulings were identified.
- Competent courts: The 2006 State Aid Study noted that both civil and administrative
courts were competent in State aid proceedings, on the basis of the type of remedy
requested. In addition, the Study noted that State aid claims were often appealed
up to the last instance court of the Member State. On the other hand, the Study
did not assess how often the national courts referred requests for preliminary
rulings to the CJEU, or the relevance of CJEU case law in national judgments.
- Prevalence of claims challenging discriminatory taxation: The Study pointed
out that 50% of the cases of private enforcement concerned claims challenging
the discriminatory imposition of a tax burden. A competitor usually brought to
court the public authority granting a tax regime more advantageous than the one
offered to the competitor. Nevertheless, in the majority of cases the plaintiff
asked for the extension of the beneficial tax regime, rather than for the
recovery of the unlawful aid.
- Interim measures rarely awarded: The 2006 State Aid Study pointed out that
national courts rarely awarded remedies in State aid cases. In particular,
both in public and private enforcement cases, interim injunctions were either
un-available under national procedural rules or they were rarely granted
by national courts. In particular, the pending compatibility assessment
by the Commission usually discouraged national courts from adopting an
interim measure blocking the implementation of the unlawful aid. Similarly,
the court proceedings that usually followed up the implementation of a
recovery decision discouraged national courts from adopting an interim injunction.
- Damages rarely awarded: The 2006 State Aid Study also pointed out that
damages were rarely requested in cases of private enforcement of State
aid rules, and courts were reluctant to award such a remedy. In particular,
challenges related to the quantification of the harm suffered by the plaintiff
and the identification of the causal link between the harm and the unlawful
aid were indicated as main obstacles to the adoption of this type of remedy.
- Lack of ad hoc procedural framework for the implementation of the
recovery decisions: the 2006 State Aid Study stressed that no Member
State had adopted an ad hoc procedural framework to enforce recovery decisions.
Consequently, the Study pointed out a number of difficulties in enforcing
the recovery of incompatible/unlawful aid; difficulties related to the
identification of the public authority in charge of the recovery and the
procedural steps to follow. Such legal uncertainty extended the duration
of the recovery proceedings and increased the chances that the Commission
decision was further challenged in national court proceedings.
2.3.2. Comparison between the main findings of the two studies
According to the Consortium, the 2006 State Aid Study represents the most comprehensive research conducted so far on the enforcement of State aid rules by the national courts of the Member States. Therefore, it represents a useful benchmark for the present Study. In particular, the trends identified in Section 2.2. could be compared to the main findings of the 2006 State Aid Study, as summarised in Section 2.3.1:
- Further increase in the number of State aid rulings: the present Study confirms the upwards trend in the number of State aid rulings in national courts. In particular, the present Study has identified 766 relevant rulings listed in Annex 2. Figures 1 and 15 show this upward trend during the Study Period.
- Prevalence of private enforcement of State aid rules: one of the major differences in comparison to the 2006 State Aid Study is the prevalence of the cases of private enforcement over public enforcement of State aid rules. While the 2006 State Aid Study concluded that private enforcement was “still in its infancy”, the situation seems to have drastically changed during the past decade. In particular, with the exception of Bulgaria, Croatia and Luxembourg, relevant rulings concerning private enforcement of State aid rules have been identified in all Member States. By contrast, in eight Member States no relevant ruling related to public enforcement of State aid rules was identified in the period covered by the present Study. As discussed in Section 2.2.1, the low number of cases of public enforcement might be due either to the fact that the Commission has not adopted any recovery decisions in relation to a number of Member States, or to the adoption of ad hoc recovery rules that decreased the number of court proceedings.
- State aid proceedings in the majority of the Member States: while the 2006 State Aid Study mainly identified cases in a small number of ‘large’ Member States, the present Study identified relevant rulings in the large majority of Member States: with the exception of Luxembourg, relevant rulings (i.e. with the prevalence of private enforcement cases) have been identified in all the Member States during the reference period of the Study. In particular, while the 2009 Update stressed that State aid rulings were extremely rare in the ‘new’ Member States in Central and Eastern Europe, the present Study identified relevant rulings in all Member States that joined the EU in 2004 and 2007. The case of Croatia, which joined the EU only in 2013 and recorded a rather limited number of rulings in comparison to other countries in Central and Eastern Europe, suggests that the number of State aid rulings might increase with time, once the market players, practicing lawyers and national judges become more familiar with State aid rules. However, the number of public and private enforcement rulings is also influenced by other factors, especially the number of aid measures granted by different Member States.
- Competent courts: the present Study confirms the findings of the 2006 State Aid Study in relation to the “fragmentation” of competent courts in State aid proceedings: in the majority of the Member States, both civil and administrative courts are competent in State aid proceedings. Unlike EU competition law, the distinction between public and private enforcement does not determine the court jurisdiction in the enforcement of State aid rules. In particular, administrative courts have jurisdiction when the plaintiff aims at challenging an administrative act; the latter can be the order implementing the recovery decision or the act awarding an aid in the form of a preferential tax treatment or State concession. Alternatively, issues related to recovery of the aid in the context of insolvency proceedings or the award of damages are usually dealt by civil courts. With the exception of Ireland, where the High Court has exclusive jurisdiction in State aid proceedings (i.e. case further discussed in Chapter 3), no Member State has modified its courts system and assigned exclusive jurisdiction to a single court in State aid disputes.
Finally, similarly to 2006 State Aid Study, State aid cases are often appealed up to the last instance court. As mentioned in Section 2.2, both in public and in private enforcement cases, last instance administrative courts ruled on the majority of the relevant rulings identified in the present Study.
- Prevalence of claims requesting the recovery of aid: while the 2006 State Aid Study identified a large number of cases where the plaintiff asked for the extension of the beneficial tax regime, this type of remedy has been requested by the plaintiff only in a limited number of the cases summarised in Annex 3. This finding shows that stakeholders involved in State aid enforcement at the national level (i.e. practicing lawyers and firms) have understood that a claim for extending a beneficial tax regime is not an appropriate remedy under State aid rules.
- Interim measures rarely awarded: while the overall number of State aid cases has increased in comparison to the 2006 State Aid Study, the number of remedies awarded remains low. In particular, the present Study confirms the findings of the 2006 State Aid Study in relation to the low number of interim injunctions awarded by national courts, both in public and in private enforcement cases. While the present Study did not identify any procedural obstacle to the award of interim injunctions, this type of remedy is rarely awarded by national courts due to the high burden of proof and concerns about the consequences of ordering the recovery of unlawful aid while the proceedings are pending before of the Commission.
- Damages rarely awarded: in relation to the low number of remedies awarded by national courts, it is worth noticing that in 65% of the cases of private enforcement of State aid rules the claim was rejected by the national court. In particular, according to the list of relevant rulings in Annex 2, damages were awarded only in 6 cases, all in France (i.e. 1% of the cases of private enforcement of State aid rules identified in the present Study). As discussed in Section 2.2 and in the country reports in Annex 3, a number of reasons might explain this trend: complexities related to the quantification of the harm and the causal link between the harm and the lack of State aid notification; lack of familiarity of the market players with this type of remedy; reluctance by national courts to award damages for unlawful aid while the Commission is reviewing the aid compatibility in the context of parallel proceedings. From this point of view, the present Study confirms the findings of the 2006 State Aid Study: damages for violation of State aid rules remain a rather theoretical possibility.
- Specific framework governing aid recovery: the 2006 State Aid Study stressed the fragmentation of the national procedural rules, especially in relation to the implementation of recovery decisions. By contrast, the present Study notes that during the past decade a number of Member States have adopted ad hoc recovery legislation, specifying the public authority in charge of the recovery proceedings and the procedural steps to be followed. As discussed in Section 2.2, a number of Member States (e.g. Spain, the Netherlands, Slovakia, Belgium and Finland) have recently adopted a law to implement aid recovery. Although these legislations are rather different and they have not been harmonised at the EU level, the latter certainly represents a new trend and a major difference with the findings of the 2006 State Aid Study. This recent development is further discussed in Chapter 3.
In Chapter 2, the Consortium has identified a number of trends concerning
public and private enforcement of State aid rules by national courts of the
Member States. The first trend concerns an overall increase in the number of
judgments ruled on by national courts during the Study period. As discussed
in Section 2.3.2, such an increase confirms the upwards trend already identified
in the 2006 State Aid Study. In particular, unlike the 2006 State Aid Study,
relevant State aid rulings have been identified in all but one Member State, i.e.
Luxembourg. This trend shows the increasing relevance of national courts in
State aid enforcement. Such courts are involved both in the enforcement of
Commission decisions/recovery orders in public enforcement of State aid rules,
as well as in the enforcement of the standstill obligation under Article 108(3) TFEU.
A second trend identified in this Study concerns an increase of private
enforcement cases, which have exceeded the number of public enforcement rulings.
In the period covered by the Study, the Consortium has identified 172 rulings
that fall within the definition of public enforcement and 594 rulings that fall
under the definition of private enforcement of State aid rules. The number
of private enforcement cases is thus more than triple the number of public
enforcement cases discovered during this Study.
A number of reasons have been discussed to explain this trend, such as the
impact of the 2008 financial crisis on the number of private enforcement cases.
As Figure 20 shows, since most of the private enforcement cases identified in the
Study concern the financial and insurance sector, it seems plausible that the
2008 financial crisis has contributed to the rise of court litigation.
In spite of the increase of State aid litigation, research undertaken in
this Study on the basis of the list of relevant rulings, has shown that
national courts have rarely concluded that unlawful aid was granted and
hence rarely awarded remedies. As shown by Figures 11 and 25, in 32% of the
cases of public enforcement and in 66% of the cases of private enforcement of
State aid rules, the national court rejected the claim. In public enforcement,
this trend can be considered as rather positive: it shows that national recovery
orders are rarely successfully challenged in national courts. Consequently, it
appears that Commission decisions may be enforced by national authorities
without facing the risk of lengthy national litigation, which might delay the
effective aid recovery. In particular, interim measures ordering the suspension
of the recovery order have been reported only in five of the identified cases
in the list of relevant rulings (i.e. 2% of the public enforcement cases
identified in the Study).
Two main reasons may explain the lack of remedies awarded by national
courts in cases of public enforcement of State aid rules. First of all,
a growing number of courts have recognised the direct applicability of
Commission decisions. The lack of a national recovery order enforcing the
Commission decision, in fact, reduces the possibilities for the beneficiary
to challenge the aid measure. Secondly, as further discussed in Chapter 3,
a number of Member States have recently adopted a specific legal framework
governing the procedure of aid recovery. Although these laws broadly differ
in terms of scope of application, administrative authorities involved and
procedural steps in the recovery process, they represent an important trend
in relation to the enforcement of State aid rules at national level.
The adoption of a specific legal framework may increase legal certainty,
reduce litigation and thus reduce the involvement of national courts in the
process of aid recovery.
While the low number of remedies awarded in public enforcement cases
can be seen as a positive sign for the enforcement of State aid rules,
the low number of remedies awarded by national courts in private enforcement
cases calls for further reflection. National courts only exceptionally either
order the recovery of the unlawful aid or adopt interim measures to suspend
the implementation of the aid measure. This trend is particularly evident
in relation to damages claims: only in six cases among the relevant rulings
identified in this Study national courts have awarded compensation due to
the harm caused by a breach of the standstill obligation – i.e. less than
1% of the identified private enforcement cases.
The country reports reveal a number of reasons which may explain why national
courts rarely award remedies in private enforcement cases: besides the lack of
familiarity of State aid rules by national courts, a number of national legal
experts report in their country reports that the claimants usually do not put
forward well-structured arguments to support their claims. In addition, it
appears that national courts face difficulties in verifying the conditions
concerning the notion of aid under Article 107(1) TFEU, under the GBER, as
well as applying the CJEU case law in relation to Altmark and MEOP. Thirdly,
a number of national reports stress that State aid claims often require national
courts to assess the legality of the measure under different areas of law
(e.g. tax, administrative, contract law); the interaction of different legal
regimes makes the evaluation of the measure under State aid rules more complex.
Fourthly, a number of national reports point out that national courts are reluctant
to order the recovery of the unlawful aid while the case is pending for compatibility
assessment at the Commission. National courts, in fact, seem generally concerned
about the irreparable consequences that the recovery could potentially have for
the aid beneficiary. Finally, and more importantly, a State aid claim generally
implies a rather high burden of proof for the claimant. This problem is particularly
evident in the case of damages claims: as shown by Corsica Ferries legal saga,
while follow-on damages actions generally require a lower burden for the claimant,
since the claimant can rely on the previous Commission decision to prove the
incompatibility of the aid measure, the damage quantification and the establishment
of the causal link remain major obstacles for the claimant. The breach of the
standstill obligation, in fact, may cause either a loss of profits and/or a loss of
market share to the competitors of the aid beneficiary. In both cases, it may be
quite challenging for the claimant to estimate the damages suffered during the entire
period that the unlawful aid was in effect. In fact, exogenous factors
(e.g. competitive structure of the market; fluctuations in terms of supply and demand)
may also have an impact on the profits and market share of the claimant. In other words,
it may be rather difficult for the claimant to prove a direct and univocal correlation
between the breach of the standstill obligation and the harm suffered.
The familiarity of national judges with State aid rules may improve via the
organisation of training programmes and advocacy activities organised by the
Commission and national authorities. On the other hand, the number of successful
damages claims might increase if national courts received ‘further guidance’
in relation to the economic techniques concerning damages estimation in State
aid cases. From this point of view, it is worth noting that in 2013 the
Commission published a Practical Guide, summarising the economic techniques
concerning damages estimation in cases of private enforcement of EU competition rules.
The Practical Guide is a non-binding document, which specifically targets national courts.
The soft law document explains to national judges the steps followed by economists
to quantify the damage in an EU competition law case in simple and accessible
language. National judges increasingly rely on the Practical Guide, considered
a useful framework to assess the reliability of the damage estimation put
forward by the experts hired by the parties. At the moment of writing,
the Commission is in the process of adopting new Guidelines on the estimation
of the passing-on effect in competition law cases. The Consortium considers
that such guidance can be seen as a positive example: if applied in the
area of State aid enforcement, it may increase the number of successful
damages claims in national courts, thus supporting a growth in cases of
private enforcement of State aid rules.
3. Best Practices in State aid enforcement
Starting from the trends described in Chapter 2, the purpose of this chapter is to identify examples of best practices in the enforcement of State aid rules at the national level. In particular, the Consortium aims at describing the characteristics of the best practices and discussing the likely reasons behind each practice.
Section 3.2 provides a definition of the concept of ‘best practices’ relied on in this Study. In addition, it explains the criteria that the Consortium used to select best practices and the indicators against which they have been tested.
Section 3.3 depicts each best practice in detail and in a contextualised manner, making reference to the relevant country reports and case summaries included in Annex 3.
Section 3.4 concludes by providing a summary of the findings.
3.2. The concept of best practices
According to the Consortium, best practices are those which ensure an effective
resolution of the issue at hand and which get closest to achieving the aims of State
aid rules both in public enforcement (i.e. recovering unlawful aid, by thus removing
the distortion of competition caused by the aid) and in private enforcement cases
(i.e. safeguarding the rights of the claimant and removing the unlawful aid, by thus
eliminating the distortion of competition caused by the aid).
The nature of best practices may vary. Some practices are found in the application
of certain rules of national procedure which accelerate claims. Furthermore, a best
practice can relate to the judicial system, and concern competence, case management
or other procedural rules. Alternatively, it can be grounded in administrative or
legislative measures, as long as they add to the ability of courts to properly
handle and resolve cases. In addition, a best practice does not necessarily
need to be applicable across the EU, but it can also be found only in one Member State.
Where possible, the analysis pays careful attention to the reasons for
the existence of each best practice. This implies a good understanding of the
legislative framework relevant for the enforcement of State aid rules and the
legal tradition of the individual country. The proper understanding of the
considerations behind each best practice allows for the exploration of whether and
to what extent each practice can be replicated in other Member States. For example,
one question discussed in this chapter is whether a best practice is the result
of either endogenous or exogenous factors that are not present in a different national
context. In the analysis, the procedural autonomy that each Member State retains
within the EU is a relevant factor to take into consideration. In other words, the
Study discusses whether and to what extent the practice could be ‘exported’ to other
Member States, for example via an amendment to the national framework or the adoption
of the practice by national courts. In particular, the Study discusses the ‘replicability’
of best practices in terms of a cost-benefit analysis, and in the light of the
procedural autonomy of the Member States in designing the national regimes of
State aid enforcement.
Furthermore, some best practices represent a particularly efficient way of
managing a procedural or substantive issue. On the other hand, other practices
represent measures taken by the Member State(s) to remedy a shortfall, a weakness,
or a friction between the national framework and the adequate enforcement of State
aid rules. In other words, a best practice can be both a way to enhance performance,
as well as an efficient way to solve an existing problem.
It is worth clarifying that this chapter does not consider as a best practice any
conduct that is ‘expected’ – i.e. where a national court or a Member State simply follows
the relevant legal framework, for instance by either respecting the primacy of Union
law or cooperating with the Commission.
The majority of the best practices identified by the Study concern public enforcement
of State aid rules. While in Chapter 2 the Consortium has identified a large number of
private enforcement cases across the majority of Member States, only a limited number
of actions have been successful in national courts. As discussed in Chapter 2, in fact,
the number of successful actions for damages and interim injunctions remain very limited
across the EU. Therefore, the number of private enforcement cases identified in
Chapter 2 is too limited to allow the identification of best practices. Conversely,
recovery orders by national courts in private enforcement cases are more frequent;
we should welcome this trend but, at the same time, the recovery orders are related
to the specificities of each case, and thus no best practice emerges in the design
of this remedy.
3.3. Identification of best practices – examples from the case summaries and country reports
For each best practice, the Consortium first defines the practice and its benefits.
The Consortium then turns to national experiences from the case summaries and country
reports in Annex 3, in order to illustrate the best practice and to identify the
indicators that help clarify the effectiveness of the practice under consideration.
Finally, Section 3.3 provides brief remarks on how these best practices might be
disseminated across the Member States.
The Consortium has identified seven best practices, that can be divided
into three categories:
- Best practices related to recovery: specific legislation, recovery instructions
in State aid instruments and national penalties for delays of recovery;
- Best practices concerning national screening mechanisms: ex-ante mechanisms
(i.e. non-binding compatibility assessment with State aid rules) and ex-post
mechanisms (i.e. State aid assessment as part of the decision-making process
of the administrative authority);
- Best institutional practices: rules clarifying the jurisdiction of the courts
in State aid disputes and the principle of investigation.
3.3.1. Specific framework governing aid recovery
Best practice
The analysis of the case summaries in Annex 3 reveals that no homogeneity exists
concerning the procedures followed by the Member States in State aid recovery actions.
Nevertheless, a number of Member States have adopted legislation concerning the
implementation of recovery decisions in the recent years. Member States that have
such legislation in place include Spain, the Netherlands, Slovakia, Belgium and Finland.
Estonia is in the process of adopting such legislation; as noted by Estonian country
report, the new legislation is likely to be adopted after the recent CJEU ruling in
Eesti Pagar. In Germany, the Federal Ministry for Economic Affairs and Energy (BMWi)
controls the enforcement of State aid recovery, thus centralising and streamlining the
recovery procedure.
The Consortium considers the adoption of a specific legal framework concerning
aid recovery as a best practice, due to the following reasons:
- It helps to speed up the aid recovery procedure: Member States should recover
the aid within four months after the adoption of the recovery decision.
However, national authorities often do not comply with this timeline.
A specific legal framework on aid recovery clarifies the obligation for
the granting authority to recover the aid from the beneficiary, it provides a
clear timeline for the recovery procedure, and it clarifies the legal value
of the recovery decision and its direct applicability.
- It increases legal certainty for all relevant stakeholders, including the
entity responsible for the aid recovery: The specific legislation
often resolves inconsistencies between existing national rules and
State aid rules
- Such legislation could safeguard the beneficiary’s right of defence.
National experiences
Comprehensive legal frameworks concerning aid recovery
As mentioned in Section 2.2.1, Spain has adopted a specific
legal framework on aid recovery. In particular, Law 34/2015
(also referred to as: the ‘LGT’) has introduced rules concerning
the recovery of fiscal aid. As mentioned in the Spanish country
report, the new legal framework was introduced in order to remedy
certain frictions between the existing national legislation and EU
State aid rules. Before the adoption of the LGT, a number of Spanish
courts had confirmed the primacy of Union law over conflicting national law.
In addition, Spanish courts had recognised that the plaintiffs could not
challenge the content of Commission decisions in the context of recovery
proceedings. On the other hand, in Álava, the Spanish Supreme Court annulled
the recovery order, since the authority in charge of recovery had not
observed the beneficiary’s right to be heard. Therefore, the LGT was
adopted both to clarify the procedural steps of the aid recovery and to
safeguard the beneficiary’s procedural rights during the recovery proceedings.
The main features of the LTG are:
- The possibility of modifying administrative acts incompatible with State
aid rules, even if these acts have acquired the status of res judicata.
- The prohibition of the beneficiary requesting the deferral or payment
in instalments of the tax debts resulting from the enforcement
of the recovery decision.
- Title VII of the LTG clarifies that the Spanish tax administration
is responsible for enforcing the recovery decisions. In addition, it
introduces a ten-year limitation period in this field, in line with
the time limit established by the applicable EU law. The new time limit
replaces the four-year limitation period generally applicable to taxation
cases in Spain.
- LTG provides that late payment interest will be governed by the relevant
provisions under Union law.
The Netherlands is another example of a Member State that has recently
adopted comprehensive legislation on aid recovery. In particular, the
State Aid Recovery Act entered into force in July 2018. The legislation
provides a legal basis for administrative bodies to recover unlawful State
aid. Similar to the case of Spain, the Netherlands adopted the Act in
order to address certain problems with regard to aid recovery. Specifically,
existing Dutch rules did not provide for a separate and comprehensive
legal basis for the recovery of unlawful aid. This implied that the aid
had to be recovered on the basis of different legal provisions
(i.e. through administrative, private or tax rules), depending on the
characteristics of the measure. Such fragmented legal framework created
disparities among aid recovery procedures and some degree of legal uncertainty.
In addition, the previous rules did not provide the possibility to recover
the interest: in 2006, the Administrative Jurisdiction Division of the
Council of State ruled that Dutch administrative law did not include
any legal basis to recover interest. On the contrary, the recently
approved State Aid Recovery Act introduces a general system of enforcement
and ensures effective recovery after a Commission decision.
Finland has also enacted specific national legislation, introducing a
procedural framework for the recovery of unlawful State aid. In 2001,
Finland adopted the Act to enable the application of Council Regulation
(EC) No 659/1999. Even though the State aid Procedural Regulation was
directly applicable in Finland, the Act clarified the responsibilities
of different administrative bodies in the context of the aid recovery
proceedings. Based on Section 1 of the Act, a recovery decision shall
be implemented without delay. The authority that has granted the aid
is also responsible for implementing that decision. The Ministry of
Economic Affairs and Employment shall implement the recovery decision
in cases where the granting authority (i.e. responsible for the aid recovery)
cannot be identified.
The country report for Estonia includes an example of a similar best
practice. Indeed, a number of cases in this Member State showed the difficulties
faced by national judges to properly cope with recovery procedures. In order
to solve such problems, Estonia is planning to issue an amendment to
the Estonian Competition Act. The latter legislation should require
the granting authority to recover the unlawful aid (i.e. on its own
initiative and even in the absence of a recovery decision). In addition,
the new legislation should introduce new procedural rules concerning
the interest calculation and the limitation period. Following the recent
ruling by the CJEU in Eesti Pagar, Estonia is expected to adopt the new
legislation in the near future.
Ad hoc legal frameworks
The Consortium has found an interesting situation in Belgium.
Rather than a legislative instrument of general application,
Belgium adopted ad hoc legislation as a follow-up to the Commission
decision in the Excess Profit case. After having consulted the
Commission, on 25th December 2016 Belgium adopted the new law.
The new legislation aimed at facilitating the enforcement of the
Commission decision in the Excess Profit case, since recovery would
have been impossible in accordance with ordinary procedures.
Impetus from national courts
In a number of countries, the framework governing the aid recovery
derives from judgments of national courts. In France, for example,
the beneficiary argued in Société Vergers de Châteaubourg v Ministre
de l'action et des comptes publics that the recovery order had to
be annulled, since the administration issuing the order had not
allowed the beneficiary to comment on the aid amount and calculation
method used in the order. The Court of Appeal ruled in favour of the
beneficiary, considering that the State administration had violated
the beneficiary’s right of defence by not allowing the beneficiary
to comment before the adoption of the recovery order.
Spanish case law also provides good examples of the role played
by national courts in the context of aid recovery. The Spanish
Supreme Court has established that the recovery procedure must
meet the basic procedural guarantees of hearing, motivation,
determination of the amount, and indication of the appeals that
may be lodged. In order to implement the case law of the Spanish
Supreme Court, the LTG provides that the recovery orders should
provide for a period of ten days within which the beneficiary can
make representations to the authority in charge of the aid recovery.
In addition, the recovery order should specify the aid amount and
interest to be paid, and the possibility to appeal the administrative
order in court.
Replicability
The design of a dedicated framework for recovery is a matter for
national procedural autonomy. Moreover, there are differences among
the legislative initiatives noted above (e.g. the Spanish legislation
applies to recovery of fiscal measures, while the Dutch legislation
does not). However, there may be scope for the creation of a working
group on State aid recovery within the Association of European
Administrative Judges. The working group could gather further
information about how these initiatives work in the different Member
States.
3.3.2. Instructions about recovery contained in the act granting the aid
Best practice
In Belgium and the UK, the granting authority may include specific instructions
concerning the possible aid recovery in the act granting the aid. At first sight,
this approach can appear unusual: in case the granting authority is uncertain
whether the measure constitutes State aid, it should notify the measure to the
Commission. However, given the uncertainties as to the notion of State aid
caused by the evolution of CJEU case law, this measure can work as a precaution
against unexpected findings. In particular, such practice could limit the
negative effects of a recovery decision. From this perspective, the inclusion
of recovery instructions in the aid instrument may have the following positive
outcomes: it may clarify the obligations of the public authority that grants
the aid; it may speed up the recovery procedure, and more generally, it may
enhance legal certainty for relevant stakeholders.
National experiences
Belgium provides an interesting example of the application of this practice.
In a number of cases, the act granting the aid included specific recovery
procedures in case the measure did not comply with State aid rules.
The country report for UK highlights that, when the aid is granted through
contracts, the funding agreement may contain provisions which offer the
granting authority a contractual method of recovery, in case a recovery
decision is issued by the Commission at a later stage.
It is quite difficult to judge the effectiveness of these experiences.
Nevertheless, the general lesson from the country reports included in
Annex 3 is that recovery orders are often challenged in court. Therefore,
a provision that clarifies a priori how the recovery should take place seems
likely to speed up the recovery procedure and avoid litigation.
Replicability
This is a simple administrative practice that can be implemented by every
granting authority, without the need for any legislative reform.
3.3.3. Penalties for the State due to slow aid recovery
A further best practice is the imposition of a penalty on the national
authority that has the obligation to recover the aid in case of delays in
enforcing the Commission decision. This practice, in fact, creates an incentive
for prompt recovery and it provides a general deterrent effect for all the
parties that have an obligation to recover. The procedure is similar to the
infringement procedure under Article 258-260 TFEU, applicable when a Member
State delays the enforcement of a recovery decision. In the latter case,
the CJEU can sanction the Member State via the imposition of either a daily
payment or a lump sum, which is to be paid to the EU’s own resources.
By contrast, at national level, the penalty would be paid to the State’s
own budget. Therefore, the national penalty would have a ‘weaker’ deterrent
effect than the possible penalty imposed under Union law. However,
the penalty could still incentivise the granting authority to complete
the recovery on time, as penalties for delay could disrupt the budgetary
allocation within the State and thus negatively affect the internal
budget of the granting authority.
National experiences
The country report for France explains that courts frequently use
the threat of financial penalties against the State when they order
the recovery of unlawful aid. This procedure is known as ‘astreinte’.
In Vent de Colère, the French court ordered the granting authority to
pay a daily penalty payment of EUR 10,000 until the date of effective
recovery. The granting authority had to pay the penalty if it had not
fulfilled its recovery obligation within six months from the date of
the judgment.
Similarly, in CELF, the Court of Appeal upheld the judgment of the
lower court and ordered the French State to recover the aid within three
months of the date of notification of the judgment. If the State failed
to recover the aid, it would have to pay a penalty of EUR 1,000 for
each day of delay.
Replicability
The national administrative law provides the legal basis for the
approach followed by French courts. The penalty payments ordered by
French courts are also applicable in other fields of administrative
practice. Accordingly, in jurisdictions where these kinds of sanctions
are possible, national courts could relatively easily consider
this approach.
3.3.4. State aid assessment as part of the decision-making process of administrative bodies: ex-ante control
Best practice
Granting authorities must take into consideration the need for
compliance with State aid rules when planning an aid measure. However,
national rules expressly requiring the administrative bodies to take
State aid rules into account in their decision-making process can be
considered as a best practice for various reasons: first, it helps
to ensure ex-ante control and compliance with State aid rules;
second, it contributes to a higher degree of legal certainty for
stakeholders, including beneficiaries, competitors and third parties,
which might be more comfortable in referring to national rather than
Union law; third, it makes it easier to identify the responsibilities
of different administrative authorities in the case of unlawful aid.
National experiences
The Local Government Act in Finland obliges municipalities to take State
aid rules into account in their decision-making process. In particular,
the Finnish Supreme Administrative Court has ruled against a number of
municipalities for violation of the Local Government Act.
The Netherlands provides a similar practice. Under the Act on Compliance
with European Legislation by Public Entities (the ‘Act on Compliance’),
the competent Minister may instruct a public body to comply with Union
law, including State aid rules. By way of example, the relevant Minister
may instruct a public entity to notify an aid measure to the Commission.
Additionally, the Minister may impose penalties if the public body does
not follow such instructions. The Ministerial powers pertaining to the
Act on Compliance are supplementary to those one based on the Provinces
and Municipalities Act. The latter act provides the Minister of the
Interior and Kingdom Relations with certain enforcement instruments
(e.g. letter of warning, suspension) in case a province or municipality
does not comply with State aid rules.
To the knowledge of the Consortium, the Dutch Government has not
yet made use of the powers granted by the Act on Compliance.
Additionally, as the new rules were adopted in 2018, it is not
possible to assess their concrete impact. Nevertheless, the Netherlands
constitutes a second clear example of legislative intervention aimed
at introducing State aid assessment in the decision-making process
of public administrations, and thus preventing inconsistencies between
national and EU State aid rules.
In Cyprus, the Office for the Commissioner for State Aid Control was
established in preparation for Cyprus’ accession to the EU. Among its
tasks, the Commission has to assess the compatibility of draft aid
measures with GBER conditions. In addition, all State institutions
have to request the opinion of the Commissioner concerning the
compatibility of a new aid measure with State aid rules before the
measure is notified to the Commission. Although the opinion is
non-binding, State authorities are required by law to ask for such
an opinion. The opinions of the Commissioner thus work as an ex-ante
system of control, which can anticipate possible incompatibility
concerns later raised by the Commission after the aid notification.
Finally, the Commissioner’s opinions are often relied upon by public
authorities in the context of recovery proceedings in national courts.
Replicability
An ex-ante system of control could be introduced in the Member States
that have established a State Aid Monitoring Authority during the
EU pre-accession phase, like Cyprus. However, national procedural
autonomy could represent an obstacle to the introduction of such a
system. In other words, the principle of procedural autonomy would
obstruct the introduction of ex-ante system of control via EU harmonisation.
3.3.5. State aid assessment as part of the decision-making process of administrative bodies: ex-post assessment
Best practice
After the aid measure is authorised by the Commission, there is always
a risk that the beneficiary either receives funds without being entitled
to them, or that it receives more funds than it is entitled to. This
risk is foreseen by Art 108(1) TFEU, whereby the Commission keeps
under constant review aid previously authorised. A complement to
Article 108(1) TFEU is a national system to check for such over-payment
and secure recovery. A national ex-post system of assessment could afford
a smooth aid recovery and act as a deterrent in relation to the misuse
of aid. In particular, it should be noted that the GBER provides for
a system of ex-post monitoring, requiring national authorities to recover
the aid which is not compliant with the GBER conditions.
National experiences
In a number of case summaries, the granting authority made ex-post
determinations to avoid over-payment. This occurred in Austria, where
the public service broadcaster had to return certain revenues that would
exceed the amounts allowed under a previous Commission decision.
Similarly, in Slovenia, the national court reduced a subsidy to
prevent excessive profits, as required by the national legislation.
Finally, in the Netherlands, the court adopted a recovery order after
a re-calculation of the beneficiary’s entitlement.
These examples reveal the importance of this kind of mechanism, which
expedites recovery and allows for decentralised State aid enforcement.
It also means that interested parties can raise concerns at national
level rather than with the Commission, thus facilitating the resolution
of their concerns.
Replicability
Since ex-post monitoring is increasingly becoming a standard practice
as a result of the State Aid Modernisation and after the decentralisation
of State aid control brought about by the new GBER, other Member
States could adopt a similar solution. In particular, the ex-post
assessment would be suitable for aid measures addressing a large number
of beneficiaries, where the recovery following a Commission decision
would be particularly complex. On the other hand, for one-off measures,
ex-post monitoring may be less cost-effective.
3.3.6. Rules clarifying jurisdiction of the courts in State aid disputes
Best practice
As discussed in Section 2.4, national judges are still generally unfamiliar
with State aid rules. In particular, this seems the case for judges either
from ‘smaller’ Member States or those which have recently joined the EU,
who thus have had fewer opportunities to deal with State aid cases.
The Consortium refers in particular to ‘smaller’ Member States in terms
of GDP and population, as well as to the Member States that joined the
EU in 2004, 2007 and 2013. In these countries, national courts seem
less likely to hear public and private enforcement cases concerning
State aid rules. The creation of a specialised court, or a chamber
of a court, could resolve this problem: a team of judges, at least
at first instance, could in fact become specialised in State aid matters.
A specialised court/chamber could have a better degree of expertise
and familiarity with State aid rules in comparison to non-specialised
courts. According to an OECD report, specialised courts in competition
law can bring greater efficiencies (e.g. procedures for similar cases
can be standardised; the court may rule on the case within a shorter
period of time). In addition, specialised courts could promote uniformity
in judgments and improve the quality of decisions. The application
of State aid rules by a specialised court/chamber could achieve
similar benefits.
National experiences
In general, Member States do not attribute exclusive jurisdiction for
State aid cases to a particular court. This means that both public and
private enforcement cases can be heard by civil as well as administrative
courts. As discussed in Chapter 2, courts have jurisdiction in State aid
rules on the basis of the remedy requested by the plaintiff and the type
of aid measure at stake.
Ireland is an exception in this regard. According to Rule 4(1) of
the Rules of the Superior Courts, the Competition List of the High
Court has exclusive jurisdiction to hear competition law proceedings,
which include State aid cases. Besides improving the familiarity of
national judges with State aid matters, the establishment of a specialised
court could reduce the length of court proceedings. In Ireland, for
example, the specialised competition list was established in order to
expedite judicial proceedings. However, the small number of State
aid cases heard in Ireland do not allow us to test if this system
has worked ‘faster’ in comparison to other countries that do not
have a specialised court.
In Italy, Article 49(3) of Law No. 234/2012 attributes exclusive
jurisdiction to the administrative courts for cases concerning:
- Aid granted in violation of the standstill obligation.
- Decisions or acts issued to execute recovery decisions, irrespective
of the kind of aid and of the entity which granted the aid.
In Italy, Law 234/2012 has clarified the courts' jurisdiction in
public and private enforcement cases, though neither a specialised
State aid court nor a specialised chamber or list has been established.
However, as discussed in the Italian country report in Annex 3, the
Italian Supreme Court has carved out various exceptions, further limiting
the scope of the exclusive jurisdiction of different courts.
Replicability
It is worth noting that the design of a judicial system is a matter
for national procedural autonomy. Moreover, the choice of a Member
States to create specialised courts is usually the result of a more
root and branch reform of the legal system as a whole. Specialised
courts are also more easily designed in ‘larger’ Member States
(i.e. in terms of GDP and population), due to the likely ‘larger‘
number of cases that the specialised court/chamber would be expected
to hear in comparison to ‘smaller’ Member States. Accordingly,
it is unlikely that this practice can be replicated easily, although
courts/chambers specialised both in competition law and State aid
might prove to be the most attractive solution. Rather than establishing
a separate specialised court dealing with State aid matters, Member
States could either attribute exclusive jurisdiction to chambers of
existing courts (i.e. Ireland), or adopt procedural rules to clarify
the courts’ jurisdiction both in public and private enforcement cases.
3.3.7. Proceedings guided by the principle of investigation
Best practice
A number of country reports in Annex 3 have highlighted that parties
in State aid proceedings often lack knowledge about the specificities
of State aid rules, and thus do not formulate proper claims. This may
explain why the majority of claims, especially in private enforcement
cases, have been rejected by national courts.
The court report for Estonia, however, reveals a procedure where the
judge takes a more active role in guiding the parties in formulating their claims.
National experiences
In Estonia, the administrative proceedings are guided by the principle
of investigation, found in the Code of Administrative Court Procedure .
The latter principle requires that the competent court must ascertain
the facts of the case on its own initiative, including gathering evidence
or imposing on the parties the obligation of presenting relevant evidence.
Furthermore, the court must provide the parties with an explanation about
the proceedings and the legal formalities, in order to guarantee the
parties’ interest. In particular, during the proceedings, the judge can
point out to the parties any defect of form that would prevent a
declaration from being heard by the judge.
In the context of State aid proceedings, the principle of investigation
could be relied upon by national judges to indicate to the plaintiffs what
remedies are ‘allowed’ under State aid rules. For instance, in a private
enforcement case, the judge could indicate to the plaintiff that the
request of extension, rather than recovery of the unlawful aid, falls
outside the scope of State aid remedies.
However, in the case summaries reported in Estonia, there is no clear
evidence that this principle has been applied. Furthermore, further
verification would be required, in order to test how this approach
could work in practice.
The principle of investigation might be considered a best practice,
to the extent that it affords both the plaintiff and the defendant
ample opportunities to present their claim in the best possible way,
allowing for a more accurate judgment by the court. The procedure may
also reduce the likelihood of an appeal. On the other hand, this
principle might also lengthen the court proceedings.
Replicability
The principle of investigation appears an idiosyncratic procedure,
tied to the legal culture of the jurisdiction under study. As with
other best practices, the principle of national procedural autonomy
limits the extension of such an approach across the EU.
3.4. Conclusions on best practices in State aid enforcement
The trends identified in Chapter 2 suggest that State aid enforcement at national level is becoming more effective in most Member States. The best practices presented in this chapter reveal that a growing number of Member States are aware that amending national procedures may be vital to making the enforcement of State aid rules more effective. Many of these practices are designed to embed a ‘culture’ of State aid enforcement among the national stakeholders (i.e. granting authorities, beneficiaries and third parties).
The Consortium has based its indicators for best practices on the experience gathered from the country reports and case summaries identified in the Study. The best practices that the Consortium has subsequently discerned mainly concern national procedural rules and judicial practices that can contribute to the reduction of the length of the aid recovery proceedings after a Commission decision. In particular, the Consortium has identified seven best practices, divided in three categories:
- Best practices related to recovery: specific legislation, recovery instructions in State aid instruments and national penalties for delays of recovery;
- Best practices concerning national screening mechanisms: ex-ante mechanisms (i.e. non-binding compatibility assessment with State aid rules) and ex-post mechanisms (i.e. State aid assessment as part of the decision-making process of the administrative authority);
- Best institutional practices: rules clarifying the jurisdiction of the courts in State aid disputes and the principle of investigation.
In recent years, a number of Member States have adopted specific legal frameworks governing aid recovery. Although these laws broadly differ in terms of scope of application, administrative authorities involved and procedural steps in the recovery process, they represent a best practice in relation to the enforcement of State aid rules at the national level. The adoption of a specific legal framework may increase legal certainty and reduce litigation, thus ensuring the effective enforcement of recovery decisions. Further best practices identified in relation to aid recovery are the inclusion of instructions about possible recovery proceedings in the administrative act granting the aid, as well as the adoption of internal penalties to sanction the national authorities if they do not enforce the Commission decision in a proper and timely fashion. The latest best practice complements the financial penalties that the CJEU could impose on a Member State in the context of infringement proceedings due to the failure to implement a recovery decision.
Additionally, the Consortium considers the screening mechanisms introduced in a number of Member States as a best practice. Such mechanisms could work either ex-ante (i.e. a national authority provides a non-binding compatibility assessment to the granting authority, thus anticipating the likely Commission assessment of the aid measure before its notification) or ex-post (i.e. a national authority monitors the compatibility of aid measures already implemented with GBER, de minimis Regulation and the concept of aid, and it can eventually order the recovery of the unlawful aid without a Commission decision. The legality of the ex-post system of control has been recently confirmed by the CJEU in Eesti Pagar, and it is in line with the increased relevance of the GBER after the State Aid Modernisation. Finally, it is worth pointing out that the ex-ante mechanisms are based on non-binding opinions delivered by national authorities to the granting institution concerning the likely compatibility of the planned aid measure with State aid rules; such non-binding opinions do not replace the Commission exclusive competence in carrying out the compatibility assessment under Article 107(2) and 107(3) TFEU and under the provisions adopted pursuant to Articles 93, 106(2), 108(2) and 108(4) TFEU.
Finally, at the institutional level, the Study notes as best practices the rules clarifying the court jurisdiction in State aid disputes, as well as the principle of investigation in court proceedings. While the former best practice makes national judges more familiar with State aid rules, the latter aims at supporting the plaintiff in developing a claim in line with the remedies available under State aid rules, thus increasing the number of successful claims in national courts.
While the abovementioned best practices may provide helpful lessons, the principle of national procedural autonomy militates against some of them becoming more generally widespread. On the other hand, a number of the best practices simply create working practices that make State aid monitoring and enforcement smoother, and thus they can easily replicated in different Member States. In other words, the best practices identified in the present Study mostly concern judicial practices that could be easily applied by national courts, rather than requiring legislative intervention. Since the beginning of State Aid Modernisation, the Commission has set up a number of working groups bringing together representatives from both the Member States and the Commission to discuss issues related to State aid enforcement. The Commission could thus establish a working group to facilitate the exchange of best practices among the Member State representatives. Within such a working group, the Member States could assist each other, in order to either refine existing policies (i.e. for the Member States that already apply one of the best practices) or in considering how far these practices could improve State aid enforcement in their country (i.e. for Member States that do not have such practices).
4. Use of the cooperation tools by the Commission and the national courts
The current State aid Procedural Regulation codifies tools for cooperation between
the Commission and national courts. These tools are set out in Article 29 of the
State aid Procedural Regulation. The box below presents the text of this article.
State aid Procedural Regulation, Article 29(1) and 29(2):
“29(1) For the application of Article 107(1) and Article 108 TFEU, the courts
of the Member States may ask the Commission to transmit to them information in
its possession or its opinion on questions concerning the application of State
aid rules.
29(2) Where the coherent application of Article 107(1) or Article 108 TFEU so
requires, the Commission, acting on its own initiative, may submit written
observations to the courts of the Member States that are responsible for applying
the State aid rules. It may, with the permission of the court in question, also
make oral observations.”
In short, national courts can request information or request opinions from the
Commission (see Article 29(1)) and the Commission may submit observations, on its
own initiative, as an amicus curiae in national court proceedings regarding State
aid and its enforcement (see Article 29(2)). It is important to note that the request
for information and the request for opinion already existed before their codification
in the State aid Procedural Regulation in 2015. Before 2015, national courts had the
possibility to ask the Commission for information or for its opinion in accordance
with the 2009 Enforcement Notice. The State aid Procedural Regulation states in this
context that the cooperation tools (should) mainly contribute to the overall
“consistency in the application of the State aid rules” across the EU.
This chapter presents the results of the analysis with regard to the actual use of
the tools for cooperation between the Commission and the national courts and the
views of the courts regarding these tools. The specific research objective was to
gather knowledge on the use of and views of national courts on the cooperation tools
provided for in Article 29 of the State aid Procedural Regulation. Additionally, the
analysis aimed at providing information on potential actions to render the cooperation
tools more efficient (if needed) both at EU level and at individual Member State level.
In order to fulfil the research objectives, the Consortium employed various data
collection methods: desk research (using data available within the Commission),
interviews with Commission staff, an online questionnaire addressed to the relevant
courts, and interviews with several selected courts. Annex 1 provides further details
about the methodology applied.
This chapter contains four main sections. First, it provides a general introduction
to the three cooperation tools (Section 4.2), explaining how they work and how often
they are used. The next part provides a detailed analysis of the use of the cooperation
tools in practice, based upon insights obtained from the online questionnaire and from
interviews with judges. A distinction is made between the results for national judges
who did (Section 4.3) and national judges who did not (Section 4.4) use (one of) the
cooperation tools. The chapter ends with the main conclusions and recommendations on
how the tools could be used in a more efficient way (Section 4.5).
4.2. General introduction to the cooperation tools
As presented above, Article 29 of the State aid Procedural Regulation mentions
three cooperation tools, namely: the request for information; the request for
an opinion; and amicus curiae observations.
4.2.1. The request for information or the request for an opinion
(Article 29(1) State aid Procedural Regulation)
The use of both the request for information and the request for an opinion lies
within the discretion of the national courts. Under the request for information tool,
the court may ask the Commission to disclose information concerning a pending Commission
proceeding or to transmit certain documents that it has in its possession. The latter
mainly refers to copies of existing Commission decisions, factual data, statistics,
market studies, economic analyses, etc. The Commission aims to respond to a request for
information within one month.
No structural statistics on the use of this tool are publicly available. The Commission
Staff Working Documents accompanying the Commission annual reports on Competition Policy
do contain some information on the requests for information received by the Commission.
In the period 2014 – 2017, judges submitted at least seven requests for information to
the Commission, with courts in Germany, Italy, the Netherlands and Spain having used the
tool. Due to the confidential character of the request for information, the Commission
does not disclose information on the specific (content) details of these requests.
Under the request for an opinion, courts can ask the Commission for an opinion on factual,
economic, and legal matters concerning the application of State aid rules. When providing
the opinion, the Commission will limit itself to providing the factual information, or
economic or legal clarification sought. The Commission will not consider the merits of the
case pending before the court. In addition, the opinion is not binding, so a national court
is not obliged to follow it. The Commission aims to give its opinion within four months.
Since 2009, the Commission provided at least 21 opinions at the request of national courts.
Courts in Croatia, Finland, Germany, Greece, Italy, Latvia, the Netherlands and Romania have
submitted a request for opinion (see Figure 29). In the majority of these 21 cases, the main
question was whether a measure would constitute State aid or not. Other questions related to
the notion of an undertaking, sometimes in connection with de minimis aid, methods to
calculate market prices or the applicability of the GBER in State aid cases.
4.2.2. Amicus curiae observations (Article 29(2)
State aid Procedural Regulation)
The Commission can provide a national court with amicus curiae observations.
Through this tool, the Commission presents its vision (observations) on a particular
State aid aspect of the case. If needed, the Commission may request relevant documentation
in order to assess the matter.
The discretion to provide amicus curiae observations lies with the Commission.
Therefore, it is not possible for third parties to request that the Commission submits
amicus curiae observations in a particular case as it is contrary to the independence
of national courts. The Commission is obliged to inform the Member State concerned of
its intention to submit amicus curiae observations before formally doing so. The court
does not have to follow the advice given by the Commission; amicus curiae observations
are non-binding.
Since 2014, the Commission has provided at least 20 amicus curiae observations.
Courts in Belgium, Estonia, France, Germany, Greece, Latvia, Luxembourg, Romania,
Sweden and the United Kingdom have received one or more amicus curiae observations
(see Figure 30). Six of the amicus curiae observations identified related to the Micula
case, which evolved around the fact that Romanian authorities had compensated foreign
investors that had invested in disadvantaged Romanian regions. The Commission ordered
Romania to recover the incompatible State aid. As the foreign investors were located
in different Member States, the Micula case was pending before several national courts.
In these countries, the Commission provided the courts with amicus curiae observations.
Other cases involving amicus curiae observations concerned the definition of SGEI
(Service of General Economic Interest), the execution or suspension of recovery decisions,
the implementation of an arbitration award and guidance on when to use national
or Union law.
4.3. Use and views - national courts that used the tools
This section focuses on the experiences with and views on the cooperation tools from the perspective of judges who either submitted a request for information / request for an opinion, or who received amicus curiae observations. Information from the online questionnaires and interviews with national judges form the basis of the analysis in this section. For summaries of the interviews and the aggregated outcomes of the online questionnaire, please refer to Annex 4.
4.3.1. Use of the cooperation tools
Familiarity and experience with the tools
Out of the 78 judges who participated in the online questionnaire, six indicated that they have used one or more tools. This means that 8% of the judges who participated in the questionnaire had practical experience with one of the cooperation tools. The Consortium did not explicitly ask the judges which tool(s) they had used or received.
Additionally, the Consortium interviewed 27 judges. Five of them indicated that they had used one or more of the cooperation tools. This equals 19% of the sample. All five judges participating in the interviews (and who had used one or more of the cooperation tools) had used the request for opinion. Two of them had also used a request for information in the same case.
In the remainder of this section, we present information obtained from the 11 judges, who have used the cooperation tools. The table below presents the main characteristics of these judges.
There seems to be more familiarity with the request for opinion than the other tools. Out of the 11 judges (that took part in the online questionnaire or the interviews), all but one indicated that they were familiar with the request for opinion. The request for information is less well-known among judges, with three out of six judges participating in the questionnaire indicating that they were familiar with the request for information. The familiarity with amicus curiae observations is even a bit lower, with two out of six judges participating in the online questionnaire indicating that they were familiar with amicus curiae observations. The Consortium did not explicitly investigate the familiarity with the request for information tool and amicus curiae observations during the interviews.
Ways to solve a problem
The five judges interviewed that had made use of (one of) the cooperation tools and the six judges participating in the online survey indicated that, in case of lack of clarity or uncertainty in relation to State aid issues, they have multiple options for seeking guidance. The most likely course of action is to invest time and effort themselves to try to find an answer to the (legal) question at hand: three out of six judges in the online questionnaire considered it most likely this action would be taken, and another two considered it very likely. Another route that judges indicated that they follow is consultation with fellow judges, preferably judges working at the same court: two judges considered this action most likely and another three judges considered it very likely. During the interviews, the five judges interviewed who had used cooperation tools, indicated that for them these two routes are the most common ones followed as well.
With regard to more in-depth legal questions, such as the explanation and interpretation of State aid rules, the five judges interviewed who made use of cooperation tools mainly pointed out that they prefer to refer a request for a preliminary ruling to the CJEU. Contacting fellow judges in other Member States does not seem to be a real option for judges, according to the responses in the online questionnaire and interviews. Additionally, the judges who participated in the online questionnaire considered the referral of a request for a preliminary ruling to the CJEU a slightly more likely action (2x most likely, 2x very likely) than approaching the Commission (2x most likely, 2x very likely).
Judges typically approach the Commission to gain a specific understanding of what constitutes State aid. Three out of the five judges interviewed who have used the cooperation tools, have limited experience in the area of State aid. These judges decided to approach the Commission as they were unsure whether a case involved State aid elements and wished to obtain general guidance. The other two, more experienced, judges approached the Commission with a request for information to support a decision on whether a particular measure constituted State aid or not. While doing so, these judges also decided to request an opinion.
Although approaching the Commission may not be the most likely action for judges, the use of cooperation tools seems to have a clear function for the judges who used it. It appears that when judges are unsure whether a case contains State aid elements, they submit a request for opinion to the Commission. When they have other questions, judges either consult their fellow judges or refer a request for a preliminary ruling to the CJEU, the latter especially with regard to in-depth legal questions.
Knowledge sharing
The majority of the judges who participated in the online questionnaire (number of judges is six) indicated that, at least to some extent, they actively shared knowledge on State aid issues with fellow judges: three actively shared knowledge, while two sometimes shared knowledge. This seems to happen informally and in a non-structured manner, as all six judges indicated that they are not part of a formal national network in which information is shared. In addition, most of them are not members of an informal network either on a national or European level, although they do meet fellow judges. This was confirmed by the interviews: the five judges interviewed who had made use of cooperation tools highlighted that information is shared internally (between national judges of the same court, sometimes between national judges of different courts), but that no formal structures for knowledge sharing on State aid issues exist. It appears from the interviews that judges do attend workshops or training sessions on State aid issues; however, this happens on an ad hoc basis.
4.3.2. Views on the cooperation tools )
Experience with the cooperation tools
The Consortium asked the six judges participating in the online questionnaire who indicated having used the tools (request for information / opinion) how they had experienced the procedure. The majority of the judges who participated via the questionnaire (four out of six judges) agreed with the statement that the procedure is easy and effective, while two judges disagreed with that statement. One of the judges, who did not find the procedure easy and effective, found it difficult to understand which procedure to follow. The other five judges had no such problems.
A similar picture results from the interviews. The majority of judges (four out of five in this category) stated that it was clear to them which procedure they should follow. Only one judge stated that the procedure was not so clear and that quite some time was spent by the judge and support staff, in order to find out how the request needed to be submitted and which information needed to be included.
In the opinion of all six judges in the online questionnaire, the information on the website of the Commission was at least to some extent clear and sufficient. None of the judges were of the opinion that the website does not suffice. Judges, during the interviews, did not explicitly comment on the information provided on the website of the Commission (DG Competition).
None of the judges who participated in the online questionnaire experienced language barriers. All five judges interviewed who made use of cooperation tools fully share this view and they indicated that they communicated with the Commission in their national languages. They also appreciated this possibility, as they felt most confident when they could express themselves in their national language. The advantage of communicating in the national language mentioned is the reduction of translation errors and misinterpretations. In addition, it is easier to formulate a question precisely and with the nuances one can only make in one’s national language.
With regard to the procedure, the Consortium concludes on the basis of the outcomes of the online questionnaires and interviews, that the judges generally seem to be quite satisfied with the current procedure. As highlighted above, many of them indicated that they knew whom to contact, which procedure to follow and how to formulate the request. Judges particularly appreciated the possibility of communicating in their national language. With regard to the procedure, the judges did not see an urgent need for the Commission to change the procedure. Nevertheless, the judges have some suggestions for further increasing the use of the cooperation tools (please refer to Section 4.3.3).
Besides questions on the procedure itself, the Consortium asked the judges, both participating in the online questionnaire and interviews, how they experienced the quality of the Commission’s response(s) to the request for information / opinion. The six judges participating in the online questionnaire found the guidance provided to be, to a certain extent, useful. The Consortium asked the judges if the Commission’s response was “useful, somewhat useful or not useful”. Only one judge explicitly stated that the opinion given was useful to the case. The others found it somewhat useful. The interviews (with the five judges who used one or more of the tools) gave a mixed picture as well. Two judges indicated that the opinion received was not useful. One of these judges stated that, although they clearly asked whether the case contained State aid elements, the answer provided argumentation both in favour and against, which was not what the judge was looking for; this judge desired a clear positive or negative conclusion. In addition, the judge deemed the response too long (in number of pages). The other judge noted that the Commission advised to refer a request for a preliminary ruling to the CJEU. The remaining three judges held mixed views on the usefulness of the opinion they received. They indicated that the opinions presented some useful guidance, but that it was difficult to apply it to their specific cases.
Four out of the six judges participating in the online questionnaire were of the opinion that the response to their request was not too late in the light of their national proceedings. Nevertheless, three out of those four did not fully agree that the response was on time. Therefore, there might have been some delays, but these were still acceptable. Judges participating in the interviews raised similar arguments. The majority of the five judges interviewed that made use of cooperation tools indicated that the response received was somewhat later than expected, but that it did not create delays in the court case. Often the judges had already suspended these cases for other reasons. Only one judge clearly noted that the response provided was too late in view of the ongoing case. The judge indicated that, in view of the national lead times for cases, the response came too late and they had to adjourn the ongoing case, which was unacceptable.
Contrary to the views on the procedure, the Consortium concludes that the judges seem less satisfied with the opinions provided. The most important reason for the dissatisfaction concerns the usefulness of the opinion received. As stated above, some judges expected a more straightforward or conclusive answer, while they received an answer, which still needed interpretation. In addition, most judges indicated that they did not receive the Commission’s observations within the four months indicated by the Commission. Nevertheless, for the majority of judges, the longer response time is not a major problem, as their cases tend to last much longer.
Future use of the cooperation tools
The online questionnaire and the interviews show that, among the group of users, the overall attitude towards the cooperation tools is quite positive. Four judges who participated in the online questionnaire indicated that they were willing to use one of the tools in the future. The other two judges stated that they doubt whether they will use one of the tools in the future. Both judges stating this provided a reason for it. The first judge indicated that the Commission’s response was not conclusive and as a result, the judge felt that using the tool was an unnecessary delay in the case. The other judge indicated that State aid cases are rare in their day-to-day work, so the opportunities for using the tools are limited.
A similar conclusion comes from the interviews. Four out of the five judges indicated that they were open to using one of the tools in the future, as they had experienced the procedure as positive and an added value to their case. Nevertheless, future use will depend on the particular case at hand. The fifth judge indicated doubt as to whether they would use the tool in the future. The main reason was the long time period between sending in a request and receiving a response, as well as, in the eyes of the judge, the limited usefulness of the response. It was not clear for the judge how to proceed with the response given.
4.3.3. Potential for improvement of the use of the tools
The Consortium asked the judges to indicate the actions, which the Commission could take to improve the cooperation between the national courts and the Commission (including the cooperation tools). The most common suggestions are:
- A better indication of the timeframes used for responding;
- Shorter response times for Commission responses.
Four out of the six judges using one of the cooperation tools and participating in the questionnaire indicated that they agree with these suggestions at least to some extent. Three out of the six judges indicated that it would be beneficial if they were better informed regarding the point of contact within the Commission. In addition, three of the six judges indicated that guidance on how to formulate a question would be a welcome addition.
In addition to the suggestions made by judges in the online questionnaire, the five judges interviewed who had made use of cooperation tools put forward some additional ideas for consideration. The main suggestions given were:
- The Commission could promote the tools more. It might be possible that many judges are not aware of the tools’ existence and therefore do not use them. As a result, overall use remains limited. Nevertheless, the use of the tools should remain discretionary and should not become a mandatory requirement (contrary to referring requests for preliminary rulings to the CJEU).
- The judges would welcome the sharing of experiences as well as outcomes, especially of the request for opinion and the amicus curiae observations. This would enable judges to find information more easily and in their own time. From a practical point of view, the judges suggested the adoption of a system similar to that of referring requests for preliminary rulings to the CJEU: for each article, the questions posed together with their answers could be published on the EUR-Lex-website.
- It would be helpful if judges could easily find more practical guidance both on the procedure (e.g. can requests be sent in by mail or fax or is postal service always required?), as well as on the information required. With regard to the former, the Commission could introduce an online platform, which offers the opportunity for a judge to ask a question online on a protected platform only accessible by judges. For the latter, the Commission could create a procedure similar to sending in requests for preliminary rulings. When submitting a request for a preliminary ruling, a clear guidance document is available which indicates which general information needs to be sent, how detailed the question must be and which supporting evidence needs to be shared.
According to the Consortium, the suggestions made by the judges, both in the survey and in the interviews, seem both effective and proportional. The suggestions could be effective, as there is a clear link between the needs of the judges (see previous analysis) and the suggestions made. The suggestions seem proportional as they seem to allow for the attainment of the desired effects at relative limited expense. The Consortium highly recommends the Commission to consider the suggestions made.
A similar conclusion comes from the interviews. Four out of the five judges indicated that they were open to using one of the tools in the future, as they had experienced the procedure as positive and an added value to their case. Nevertheless, future use will depend on the particular case at hand. The fifth judge indicated doubt as to whether they would use the tool in the future. The main reason was the long time period between sending in a request and receiving a response, as well as, in the eyes of the judge, the limited usefulness of the response. It was not clear for the judge how to proceed with the response given.
4.4. Use and views - national courts who did not use the tools
This section focuses on the views on the cooperation tools from the perspective of
national judges who did not use any of the tools. Information from the questionnaires
and interviews with national judges forms the basis of the analysis in this section as
well. For summaries of the interviews and the aggregated outcomes of the online
questionnaire, please refer to Annex 4.
A total of 72 of the 78 judges who participated in the online questionnaire
indicated that, at least occasionally, they deal with State aid related cases,
but do not have any experience with using the cooperation tools. Out of the 27
judges interviewed, 22 indicated having at least some experience with State aid,
but not having used the tools. In this section, we present the information obtained
from these 94 judges (the 72 judges without experience with cooperation tools
participating in the online questionnaire and the 22 judges without experience
with cooperation tools participating in the interviews).
The 72 respondents from the online questionnaire originate from 21 Member States,
are often quite experienced and work for different types of courts. An important
observation is that the respondents are often not ‘specialised’ in State aid:
approximately 60 of the respondents noted working fewer than five times a year on
a case which involves State aid elements and nearly half even less often than once
a year. For the details, see the next table (Table 4).
The 22 judges who participated in the interviews, originate from 17 Member States,
namely Austria, Belgium, Bulgaria, Croatia, France, Germany, Greece, Hungary, Italy,
Lithuania, Malta, Netherlands, Poland, Portugal, Romania, Slovakia and Spain. Similar
to the judges who participated in the online questionnaire, the judges interviewed
stated that they were not ‘specialised’ in State aid. It is not possible to provide
further details on the work experience of the judges, as the Consortium did not
systematically collect this information during the interviews.
4.4.1. Use of the cooperation tools
Familiarity with the tools
The Consortium asked the judges participating in the online questionnaire,
who did not use the cooperation tools, to what extent they were familiar with
the existence of the cooperation tools. In the questionnaire, 41 of the 72
respondents indicated that they are familiar with at least one of the cooperation
tools. The majority of the judges who are familiar with the cooperation tools are
familiar with all three tools (19 out of the 41 respondents), followed by the
request for information (12 out of the 41 respondents) and the request for opinion
(7 out of the 41 respondents). There is less familiarity with amicus curiae
observations (5 out of the 41 respondents).
Approximately four out of ten respondents participating in the online
questionnaire were not familiar with the cooperation tools at all. There is
no specific geographical pattern with regard to the respondents who indicated
a lack of familiarity with the cooperation tools. The judges originate from
thirteen different Member States (AT, BE, BG, DK, EL, ES, FI, IT, LV, NL, PL, PT and SE).
At the same time, other respondents from the same Member State indicated familiarity
with the tools. Interviewees from four different Member States indicated that they
had the impression that most judges in their country were unaware of the cooperation
tools.
From the questionnaire, respondents who indicated that they were familiar with at
least one of the cooperation tools (41 judges), approximately 22 judges indicated
that they had considered using the tool, 15 judges had not considered it and the
remaining four judges indicated “not applicable”.
Ways to solve a problem
The online questionnaire shows that the judges do not consider it a natural choice
to approach the Commission in case they have a question. Respondents were asked which
‘actions’ they would take if they faced questions related to State aid in the case they
were working on. The data show that the most likely two options for a judge are (i) to
invest time and effort to solve the issue themselves (45 of the 72 judges considers this
a most likely action) and (ii) to informally consult with fellow judges in their own
country (26 of the judges considers this a most likely action to take). Requesting a
preliminary ruling from the CJEU is considered less likely (19 out the 72 judges), as
is the ‘action’ to approach the Commission (18 judges).
The interviews with the 22 judges who have not used one of the cooperation tools
confirm the outcome of the online questionnaire. Approximately one in three interviewees
indicated that the ‘natural choice’ of a judge, in order to come to a good understanding
and judgment, is to invest more time and effort in a case or to consult their direct
fellow judges. Approximately one in three interviewees, significantly overlapping with
the previous one third, indicated that referring a request for a preliminary ruling
from the CJEU cannot be directly compared to an opinion from the Commission. An answer
from the CJEU has in principle ‘more legal value’ than an opinion from the Commission,
according to these judges. In this context, judges also note to prefer to approach a
‘fellow court’, instead of an ‘administrative body’ such as the Commission. The judges
interviewed indicated that the main value added for the cooperation tools is provision
of a concrete and targeted answer within a reasonable time period.
Knowledge sharing
The Consortium asked the judges in the online questionnaire about the extent to which
judges normally share knowledge about State aid issues and how this takes place.
The information collected shows that only a very limited number of the judges are part
of a formal or informal national or international network. However, most of the judges
indicated that they are (sometimes) involved in some means of knowledge-sharing, e.g.
direct sharing with fellow judges, attending workshops or knowledge sessions.
4.4.2. Views on the cooperation tools )
The Consortium asked the judges who did not use cooperation tools, both in the online
questionnaire and in the interviews, to provide their views on the cooperation tools.
Specific attention was paid to (1) specific reasons or obstacles which (may) hinder the
use by national courts of the cooperation tools, i.e. the request for information or
request for an opinion; and (2) the overall attitude towards the cooperation tools
(including amicus curiae observations).
(1) Reasons / obstacles, which (may) limited the use of the cooperation tools
In both the online questionnaire and the interviews, the Consortium asked the judges
for the main reasons and / or obstacles why judges did not use either the request for
information and / or the request for an opinion. In analysing the responses, it is
important to make a distinction between those judges who are familiar with the
cooperation tools (42 of the online questionnaire respondents) and those who are
not (30 of the online questionnaire respondents).
The next figure (Figure 31) presents the results for the information obtained
from the online questionnaire for judges who were familiar with the cooperation tools.
The main reasons listed relate to a lack of relevance for the case and the wish
to avoid delays.
Judges hardly consider potential barriers, such as procedural costs and loss of
sovereignty, a barrier to use the cooperation tools. Five of the respondents provided
“other reasons” and referred to a lack of relevance in their cases (three times),
the additional time a procedure would take (twice) and the observation that CJEU
case law was consistent and clear.
The respondents who were unfamiliar with the cooperation tools (thirty-one judges)
also listed the main reasons for not using the tool. The figure below (Figure 32)
presents the results. Only half of these respondents listed “the unawareness of the
existence of the tool” as a reason. For the other reasons indicated by the judges,
we understand that these respondents gave their reaction on the hypothetical situation
that they would have been familiar with the tools. The main listed reasons, other than
lack of awareness, for not using the cooperation tools relate to the lack of relevance,
the time a procedure would take and the avoidance of delays. Again, judges hardly mentioned
any other potential barriers, like procedural costs and loss of sovereignty. One
respondent gave an “other reason”: the judge indicated that the court had never handled
a case where a need for cooperation tools existed, but also indicated that the court
would submit any “non-factual, open legal question” to the CJEU and not to the
Commission.
When reflecting on the various reasons, which both groups of national judges (72 judges)
listed, the Consortium can make four observations:
- As none of these respondents has used any of the cooperation tools, a few of the
reasons listed can only be based upon perception. Examples are the expectation that
a procedure would be (too) time consuming (mentioned by 18 out of 72) or the
expectation that the outcomes of the tool would be difficult to use under the
national procedural law (8 out of 72), for example, the outcomes of the tools
might not be used as evidence according to national procedural law. It is not
exactly clear where this perception comes from, but some interviewees indicated
that they had been involved in similar procedures (e.g. referring a request for a
preliminary ruling to the CJEU), which were sometimes quite burdensome.
- Half of the respondents indicated that, within the context of their own professional
situation, the tools would not have been relevant for their cases (18 out of the
72respondents) and / or that their cases only included national elements with
limited relevance for the Commission’s involvement (17 out of the 72 respondents).
This indicates that, given the type of cases with which the respondents were dealing,
the cooperation tools may often not be relevant or needed in cases.
- A quarter of the respondents (18 out of 72) indicated that a delay in the
national proceedings would be an important reason for not using the cooperation
tools. One of the respondents explained in this context that the (time) pressure
on judges to proceed with their cases can be seen as a big hurdle, as judges
need to have very good reasons to extent their judgment even a few months as
judges have many cases pending. However, in the interviews, more than half of
the judges indicated that a response time of four months for the Commission to
reply to a request for opinion, would (often) be well acceptable and would not
necessarily be a big hurdle. Only in cases where there exists a certain time
pressure (e.g. in bankruptcy cases), a period of four months can be considered
too long.
- Finally, it is important to mention that a group of respondents indicated that
the procedure for using the tools was unclear or that it was difficult to find
a contact within the Commission (respectively 15 and 9 out of 72). Given the
fact that various contact details (P.O. Box, telephone number and e-mail address)
are quite prominently published on the State aid website of DG Competition ,
it is not clear why the judges mentioned these problems. The online questionnaire
did not provide further details on this topic.
The interviews with the judges (22 judges who had not used one of the tools)
clearly showed that there is a strong preference for working in the national
language of their own Member State. The fact that the Commission indeed offers
this possibility is highly appreciated and the Consortium expects that this
results in a better understanding by the judges of the Commission’s position.
Consequently, judges do not consider the language as an important (potential)
barrier for the use of the cooperation tools.
(2) Overall attitude towards the cooperation tools
The results from the online questionnaire and the interviews show that, among the
group of non-users, the overall attitude towards the cooperation tools is quite
positive.
The interviews revealed that the judges have quite a positive attitude towards
amicus curiae observations. Most of the judges indicated that, in a situation where
the Commission were to approach them, they would be open to the opinion of the
Commission as this would contribute to and strengthen the overall quality of their
understanding of the case at hand. In this context, one of the interviewees made
the comparison with the opinion / involvement of an external academic expert, which
the judge sees as a valuable contribution.
In the online questionnaire, a large majority of the respondents (64 out of the 72 respondents)
indicated that they would consider the use of one of the cooperation tools
(i.e. the request for information / opinion) in the future. The remaining 8 respondents are
uncertain (“doubtful”) whether they would consider using them. Among the respondents who were
familiar with the cooperation tools, the overall attitude is even more positive, as 39 out of
the 41 respondents indicated that they would consider using them in the future. Within the
group, which is unfamiliar, the respondents are less confident (25 out of the 31 judges
indicated “yes”).
The judges who indicated that they would consider the use of the cooperation tools in
the future (64 out of the 72), were asked to give their motivation for this. Approximately
40 respondents made use of this opportunity and clarified their motivations in an open
text box. Although the responses vary, there is a very clear message from these answers:
the judges value the possibility to make use of the knowledge and expertise of the
Commission in order to improve and strengthen their overall understanding of the case
at hand. Judges gave various opinions in this line of reasoning:
- The tools enable judges to gather more information (if needed), learn from the opinion
provided and make a better judgment;
-
The cooperation is a useful way to better understand the case law (if needed) and ensure
a right and balanced decision;
-
The cooperation will contribute to a more unitary jurisprudence at national and EU level,
and / or decisions, which are line with CJEU case law.
Four of the eight judges who are doubtful that they would use the cooperation
tools in the future also provided a reason. These reasons vary significantly:
consideration that the CJEU is most likely better positioned to provide the advice
sought; the need for ensure independence; general lack of knowledge about the
availability of the tools; and the expected delay for the case.
4.4.3. Suggestions for increasing the use of the tools
The Consortium also asked the respondents who had no experience with the cooperation
tools to give their opinion on how the use of cooperation tools by the Commission and
the national courts could be improved. They had the possibility to respond to nine statements
and indicate to what extent they agreed with the statements. As the responses between
those respondents who were and were not familiar with the cooperation tools hardly differed,
the analysis presents the outcomes for the whole group (72 judges). With the exception
of the guarantee on sovereignty, respondents were overall quite positive about the various
suggestions. For five of the statements, the majority of the respondents
(between 38 and 44 judges) indicated their full agreement. This related to better
knowing whom to contact within the Commission, having another point of contact
(outside the Commission, for instance a national point of contact), the existence
of an online portal where questions can be asked, more information on State aid
issues, as well as more training and guidance.
In addition to the online questionnaire, the Consortium also discussed the potential
for strengthening the use of cooperation by the Commission and national courts during
the interviews. The judges gave various ideas and suggestions, such as:
- It was suggested by the judges that the Commission ensures that there is an online
portal, where relevant and up-to-date information on (the interpretation of) State
aid rules is easily accessible. Judges confronted with a specific question related
to State aid rules, see the Commission (website) as an important source of information.
- Judges suggested ensuring that the online portal would offer transparency about the
procedure for the request for information / opinion, especially with regard to the
right contact persons within the Commission, guidance on the information the
Commission needs to have, the duration of the procedure, clarity about the
confidentiality, etc.
- Some judges suggested that the Commission offers the possibility to have (informal)
contact with the Commission prior to the submission of the request for information /
opinion. This contact can be used to inform / advise the national court and
(if still applicable) fine-tune the request from the side of the court;
- Some judges suggested that the Commission ensures a rather pro-active role /
position towards the national courts, advocating / sharing knowledge about State
aid, for example by facilitating knowledge events, workshops, training sessions,
etc. Judges indicated that it is important to stimulate the general knowledge
about the State aid rules and subsequently inform the judges that it is possible
to approach the Commission for support and advice. A few judges indicated that
it would be very beneficial if (local) activities are organised in the national
language, as the use of English may form an important obstacle to judges
participating;
- Related to the previous point is the suggestion of judges that the Commission
would stimulate the use and membership of knowledge networks at European level
by actively promoting their participation; ideally this is also stimulated at
national level, but it is acknowledged that this is mainly the responsibility
of the individual Member States;
- One of the interviewees suggested expanding the scope of the cooperation tools
and offering general prosecutors the possibility to request the Commission’s
opinion about (potential) State aid issues. This may create some clarity in
the early stages of (complex) cases (e.g. on potential tax fraud, violation of
the State aid rules, etc.) and contribute to the overall cost-efficiency of the
legal system.
The Consortium considers the suggestions offered by the judges to be effective in
meeting the judges’ needs and stimulating the use of the tools. A clear link between
the problems described and the solutions provided is evident. The Consortium deems
the suggestions proportional in the sense of the resources required. The measures
proposed are not expensive and easily achievable (e.g. add information to the website
or a promotional campaign). The main point of doubt is the suggestion to expand the
scope of the tools, which may constitute a more fundamental decision, for which the
Consortium considers the need for a more fundamental policy analysis, beyond the
scope of this Study.
4.5. Conclusions on cooperation tools
Based on the data gathered and the analysis presented in Chapter 4, the
Consortium makes a number of key observations and draws some conclusions on
the use of and views on the cooperation tools by national courts.
Only a limited number of judges have experience with using one or more of the
tools; Judges seem to use the tools only on a limited scale (see Section 4.2).
The limited use of the cooperation tools may be explained by a lack of relevancy
of the tools for individual cases. However, it shows from our research that there
seems to be a significant lack of awareness on the existence of the cooperation
tools among judges. The questionnaire results, as well as the interview findings,
show that a large share of judges is not aware of the existence of the cooperation
tools. Around 30 judges who took part in the online questionnaire indicated that
they had not heard of any of the cooperation tools before participating in the Study.
The judges interviewed confirmed this finding. Several of them also indicated that
their fellow judges were not familiar with the tools’ existence. This apparent lack
of awareness underlines the recommendation to raise awareness among judges on the
existence of the tools.
From the data gathered, it is apparent that judges who deal with State aid cases
form a diverse group. They differ in level of work experience, the type of courts
for which they work and the type of cases they handle. The majority of judges are
not specialised in the field of State aid: approximately 60 of the judges who
participated in the Study deal with fewer than five cases containing State aid
elements per year, often (almost half of the respondents) fewer than one State
aid case per year. State aid therefore does not appear to be part of judges’
day-to-day business and judges specialised in State aid are rare. This limited
involvement in State aid cases may further explain the limited awareness among
judges for the existence of the tools.
Even when judges are familiar with the cooperation tools, our research shows that
making use of these tools does not appear to be the most likely action judges will
take when seeking information on State aid issues in their cases. The vast majority
of judges will first invest time and effort in trying to find an answer to the
(legal) question at hand themselves, followed by consulting fellow judges, preferably
judges working at the same court. Although seeking advice from the Commission is
not the primary action foreseen by judges, they do appear to value having the option
of approaching the Commission for input.
Judges who indicated to have used cooperation tools, appear to hold mixed views
on the current set-up of the cooperation tools. With regard to the procedure, the
majority of judges are of the opinion that it is easy and effective. Nevertheless,
some judges also contended that it was not always clear to them which procedure
they need to follow. Improving the accessibility of practical guidance on the
procedure, with respect for the information provided and the location(s) where the
Commission makes this information available may help address this issue raised.
Although many judges have not used one of the cooperation tools, the willingness
to use them in the future cases is large. Almost 70 out of the 78 judges indicated
that they would use of the tools if they would have a suitable case for it. This
clearly underlines the relevance of the cooperation tools for judges.
The main suggestions from judges for improvements related to the cooperation
tools are:
- The Commission could issue more practical guidance both on the procedure as well as
on the information required offer more easily findable, for example on an
online portal;
- The Commission could promote the cooperation tools more;
- The Commission could share experiences of judges as well as outcomes of requests
for opinion and amicus curiae observations;
- Some judges would appreciate the possibility to have (informal) contact with the
Commission prior to the submission of the request for information / opinion.
- Some judges would much appreciate it if the Commission could shorten the response
times for Commission responses;
The main potential endeavours that the Commission could undertake to support the use
of cooperation tools include:
- Improving (the accessibility of) practical guidance on the cooperation tools procedures.
Potential places where this information would be made available could be, in addition
to the website of the Commission (DG Competition), locations that judges typically
use for finding legal information, such as the EUR-Lex-website.
-
The dissemination of information on and promotion of both State aid rules in general
and the cooperation tools in particular, with the aim of increasing overall awareness
among national judges. To achieve this, the Commission could introduce an online
platform, which offers the opportunity for a judge to look-up the required information
as well as to ask a question online on a protected platform only accessible by judges.
Procurement procedure COMP2018001 Final Study.pdf
Procurement procedure COMP2018001 Annex 2.xlsx