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JOBNAME: Marquis PAGE: 1 SESS: 11 OUTPUT: Tue Feb 17 09:12:28 2015

10. State aid cases before national

judges

Mario Siragusa and Kostandin Peci

ABSTRACT

This chapter briefly discusses the enforcement of State aid rules by

national judges. The analysis first focuses on the main legal actions and

remedies available to companies enforcing State aid rules as a ‘sword’,

including damage claims against the issuance of unlawful aid. Then we

examine the opposite scenario (in other words, State aid rules used as a

‘shield’), in particular the case of a beneficiary of allegedly unlawful aid

challenging the validity of the national recovery order before national

courts on the ground that the recovery order implements an invalid

Commission decision finding the aid to be unlawful.

STATE AID AND NATIONAL JUDGES: A GENERAL

OVERVIEW

The basic EU State aid rules are contained in Articles 107 through 109 of

the Treaty on the Functioning of the European Union (‘TFEU’). Under

Article 107(1) TFEU, a State measure is found to comprise elements of

aid where the following four cumulative criteria are fulfilled:

+ the measure is granted by the State or from State resources, and it

is attributable to State action;

+ the measure confers on the recipient an advantage (for example, a

reduction in the tax base or in the amount of tax, a deferment or a

cancellation) that it would not usually enjoy under normal market

conditions;

Partner, Cleary Gottlieb Steen & Hamilton LLP, Rome; Associate, Cleary

Gottlieb Steen & Hamilton LLP, Rome.

224

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+ the measure is specific or selective (in other words, it favours a

certain undertaking(s) or the production of certain goods); and

+ the measure is capable of distorting competition and of affecting

trade among Member States.

Measures that constitute State aid pursuant to Article 107(1) can be

authorized under Article 107(2), Article 107(3) or Article 106(2), on the

basis of a number of legitimate objectives. Any new State aid measure

must be notified, in draft form, to the Commission for approval in

accordance with Article 108(3) TFEU and Article 2 of Council Regu-

lation (EC) 659/1999 (the ‘Procedural Regulation’).

This means that,

under Article 108(3), aid may not be implemented by the Member State

concerned until the Commission adopts a decision to authorize it (the

‘standstill obligation’). Aid granted in violation of the standstill obliga-

tion constitutes unlawful aid, which is subject to recovery from the

beneficiary (including compounded interest). However, the Commission

can order recovery only if the aid is not only unlawful in the sense of

having been improperly granted, but also incompatible with the Internal

Market.

Member States may not rely on urgency as an excuse for

infringing this obligation.

The prohibition against Member States implementing aid absent Com-

mission approval gives rise to directly effective individual rights of

affected parties, which national courts are bound to safeguard.

Affected

Council Regulation (EC) 659/1999 laying down detailed rules for the

application of Article 93 of the EC Treaty [1999] OJ L/83/1.

See, for example, Case C-142/87 Belgium v Commission (Tubemeuse)

[1990] ECR 959. For the (exceptional) possibility of adopting a provisional

recovery order, see Article 11(2) of the Procedural Regulation.

Joined Cases T-239/04 and T-323/04 Italy v Commission [2007] ECR

II-3265, para 89.

As a matter of principle, see Case C-6/64 Costa v Enel, [1964] ECR 585,

596. See also Joined Cases C-261/01 and C-262/01 Belgium v Van Calster et al.

[2003] ECR I-12249, para 75; Case C-368/04 Transalpine Ölleitung in Österre-

ich GmbH et al. v Finanzlandesdirektion für Tirol et al. [2006] ECR I-9957, para

38. In the field of State aid, see Case C-39/94 Syndicat Français de l’Express

International (SFEI) v La Poste and Others [1996] ECR I-3547, para 39. See

also Case 120/73 Gebrüder Lorenz GmbH v Germany and Land Rheinland-Pfalz

[1973] ECR 1471, para 8; Case C-354/90 Fédération Nationale du Commerce

Extérieur des Produits Alimentaires and Syndicat National des Négociants et

Transformateurs de Saumon (FNCE) v France [1991] ECR I-5505, para 11.

State aid cases before national judges 225

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parties can enforce their rights by bringing legal actions before com-

petent national courts against the granting Member State. Deciding on

such claims ‘is one of the most important roles of national courts in State

aid rules’.

However, ‘according to settled ECJ jurisprudence[,] national courts do

not have the power to declare an aid compatible with Article 107(2) or

(3) of the Treaty’.

The assessment of the compatibility of aid measures

with the Internal Market falls within the exclusive competence of the

Commission, while it is for national courts to ensure that the rights of

individuals are safeguarded where the notification obligation of new aid

prior to its implementation is infringed.

Hence, national courts and the Commission play distinct but comple-

mentary roles in the enforcement of State aid rules. The scope of action

recognized for national courts may be summarized as follows.

The ‘first issue facing national courts […] is whether the measure

concerned actually constitutes State aid within the meaning of the

Treaty’.

If the national court finds that a given measure constitutes State

aid, it should then scrutinize whether there has been a breach of the

standstill obligation. In this context, it is important to make a distinction

between new and existing aid,

since it is only the former that has to be

notified to, and authorized by, the Commission. Therefore, in the case of

existing aid, national courts would only scrutinize whether the measure at

issue is realized in conformity with a scheme previously authorized by

the Commission. Similarly, national courts would also have to analyze

whether the measure falls within the scope of a block exemption

regulation; if that is the case, the standstill obligation would not apply.

If an infringement of the standstill obligation is found, the national

judge is under an obligation to adopt all remedies available at the

national level and necessary to establish the status quo ante. The legal

actions and remedies before national courts are governed by domestic

procedural rules, which are nevertheless subject to the (rather narrow)

Commission Notice on the Enforcement of State Aid Law by National

Courts [2009] OJ C85/01 (the ‘2009 Notice’), para 24.

2009 Notice, para 20.

Van Calster, cited above, note 4, para 75; Transalpine Ölleitung, cited

above, note 4, para 38.

2009 Notice, para 8.

Existing aid is, in particular, aid that has already been approved by the

Commission (see also Articles 1(b), 17 and 19 of the Procedural Regulation).

See 2009 Notice, para 15(a).

226 Litigation and arbitration in EU competition law

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boundaries drawn by the EU law principles of equivalence and effect-

iveness.

The Lucchini case provides a good example in this regard, as it

illustrates how the principle of procedural autonomy gives way to the

primacy and effet utile of the EU State aid rules. In that case, the Court of

Justice held that the Italian legal system’s principle of res judicata does

not prevent recovery of illegal and incompatible aid.

STATE AID CASES BEFORE NATIONAL JUDGES

Two main scenarios may be identified in relation to legal actions

concerning State aid that may be brought before national courts. First,

national judges can be called on to decide on actions claiming breach of

State aid rules as a ‘sword’, the common scenario being that of the

beneficiary’s competitors seeking remedies for breach of the standstill

obligation before national courts. Second, national courts can be con-

fronted with actions using State aid rules as a ‘shield’: in practice, this

occurs frequently, as actions are brought by beneficiaries of aid who

challenge the validity of a national recovery order.

State Aid Rules as a ‘Sword’

As elaborated below, the remedies claimed against a breach of the

standstill obligation depend on whether the allegedly unlawful aid has

already been disbursed.

Actions aimed at preventing disbursement of unlawful aid

Clearly, if the allegedly unlawful aid has not yet been disbursed, the

claimant (for example, a potential beneficiary’s competitor) can ask the

national judge to find an infringement of the standstill obligation and to

See Article 14(1) and (3) of the Procedural Regulation, as well as Case

C-232/05 Commission v France (Scott) [2006] ECR I-10071, para 53; Case

C-24/95 Rheinland-Pfalz v Alcan Deutschland GmbH [1997] ECR I-1591;

Case C-496/09 Commission v Italy [2011] ECR I-11483, para 78.

Case C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato

v Lucchini SpA [2007] ECR I-6199, para 63. However, in the most recent

decision in the Lucchini saga, the Court of Rome held that the principle of

primacy of EU law could not be invoked to challenge the national principle of

res judicata. According to the court, primacy applies only to the relationship

between sources of law and has no influence on the Italian procedural rules

establishing the principle of res judicata (Court of Rome, 21 March 2011, no.

6039).

State aid cases before national judges 227

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