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) of the Treaty on European Union (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 its opinion on economic, factual and legal matters concerning the application of the State aid rules.
Possible subject matters for Commission opinions include, inter alia:
- Whether a certain measure qualifies as State aid within the meaning of Article 107 TFEU and, if so, how the exact aid amount is to be calculated. In most cases, national courts can find some guidance in the Commission Notice on the notion of State aid as referred to in Article 107(1) TFEU. In addition, a national court may ask the Commission to give an opinion regarding each of the criteria under Article 107 TFEU (namely, the existence of an advantage, granted by a Member State or through State resources, possible distortion of competition and effect on trade between Member States).
- Whether a certain aid measure meets a certain requirement of a Block Exemption Regulation so that no individual notification is necessary and the standstill obligation under Article 108(3) TFEU does not apply.
- Whether a certain aid measure falls under a specific aid scheme which has been notified and approved by the Commission or otherwise qualifies as existing aid. Also in such cases, the standstill obligation under Article 108(3) TFEU does not apply.
- Whether exceptional circumstances exist which would prevent the national court from ordering full recovery under Union law.
- Where the national court is required to order the recovery of interest, it can ask the Commission for assistance as regards the interest calculation and the interest rate to be applied.
- The legal requirements for damages claims under Community law and issues concerning the calculation of the damage incurred.
When giving its opinion, the Commission limits itself to providing the national court with the factual information or the economic or legal clarification sought, without considering the merits of the case pending before the national court. Moreover, unlike the authoritative interpretation of Union law by the Union Courts, the opinion of the Commission does not legally bind the national court.
The Commission endeavours to provide the national court with the requested opinion within four months from the date it receives the request.