National courts play a decisive role in the enforcement of the State aid rules. The Commission is committed to assisting national courts where they find such assistance necessary for their decision on a pending case. For that purpose, the Commission Notice on the enforcement of State aid law by national courts provides practical and user-friendly information on how courts can best use the available cooperation tools.
When supporting national courts, the Commission must respect its duty of professional secrecy and safeguard its own functioning and independence. In fulfilling its duty of sincere cooperation under Article 4(3) TEU with national courts, the Commission is therefore committed to remaining neutral and objective. Since the Commission's assistance to national courts is part of its duty to defend the public interest, the Commission has no intention to serve the private interests of the parties to the case pending before the national court. The Commission will therefore not hear any of the parties involved in the national proceedings about its assistance to the national court.
Practical details on how to contact the Commission can be found here.
According to Article 29, paragraph 1 of Council Regulation (EU) 2015/1589 (the 'Procedural Regulation'), a national court may ask the Commission for information in its possession. A request may typically relate to:
- Information concerning a pending Commission procedure; this can, inter alia, include information on whether a procedure regarding a particular aid measure is pending before the Commission, whether a certain aid measure has been duly notified in accordance with Article 108(3) TFEU whether the Commission has initiated a formal investigation, and whether the Commission has already taken a decision. In the absence of a decision, the national court may ask the Commission to clarify when this is likely to be adopted.
- In addition, national courts may ask the Commission to transmit documents in its possession. This can include copies of existing Commission decisions to the extent that these decisions are not already published on the Commission's website, factual data, statistics, market studies and economic analysis.
In transmitting information to national courts, the Commission needs to uphold the guarantees given to natural and legal persons under Article 339 TFEU. This article prevents members, officials and other servants of the Commission from disclosing information which is covered by the obligation of professional secrecy. This can include confidential information and business secrets.
Articles 4(3) TFEU and 339 TFEU do not lead to an absolute prohibition for the Commission to transmit to national courts information covered by professional secrecy. As confirmed by the Union Courts, the duty of loyal cooperation requires the Commission to provide the national court with whatever information the latter may seek. This also includes information covered by the obligation of professional secrecy.
Where it intends to provide information covered by professional secrecy to a national court, the Commission will therefore remind the court of its obligations under Article 339 TFEU. It will ask the national court whether it can and will guarantee the protection of such confidential information and business secrets. Where the national court cannot offer such a guarantee, the Commission will not transmit the information concerned. Where, on the other hand, the national court has offered such a guarantee, the Commission will transmit the information requested.
There are further scenarios where the Commission may be prevented from disclosing information to a national court. In particular, the Commission may refuse to transmit information to a national court where such transmission would interfere with the functioning and independence of the Union. This would be the case where disclosure would jeopardise the accomplishment of the tasks entrusted to the Commission (for example, information concerning the Commission's internal decision making process).
The Commission endeavours to provide the national court with the requested information within one month from the date it receives the request