The new Commission Notice on the enforcement of State aid law by national courts, adopted in July 2021, which replaces the notice adopted on the same topic in 2009, underlines the key role of national courts in the enforcement of Union State aid law. National courts be called upon to apply State aid law in a variety of scenarios:
- Article 108(3) TFEU provides that Member States may not implement new State aid measures before they have been approved by the Commission ('stand still obligation'). Any new aid put into effect without the authorisation of the Commission is unlawful. This provision has direct effect therefore, parties affected by unlawful State aid can bring direct action before national courts for damages, recovery and/or injunctive measures. The Commission Notice on the enforcement of State aid law by national courts gives further guidance on possible remedies against violations of the standstill obligation, such as the repayment of unlawful aid, damages claims, interim measures or interest payments.
- National courts also play an important role in the enforcement of recovery decisions adopted by the Commission under Article 16(1) of Council Regulation (EU) No 2015/1589. The involvement of national courts in such cases usually arises from actions brought by beneficiaries to review the legality of the repayment request issued by national authorities. However, depending on national procedural law, other types of legal action may be possible, such as actions by Member State authorities against the beneficiary aimed at the full implementation of a Commission recovery decision, or claims from third parties for compensation for damages from national authorities for failure to implement a Commission recovery decision. The Recovery Notice provides further information on the role of national courts in this respect.
- The General Block Exemption Regulation, which has direct effect, could also give rise to disputes before national courts. In this context, national courts may have to assess whether a certain aid measure meets a certain requirement of the Regulation or not, so that no individual notification is necessary and the standstill obligation under Article 108(3) TFEU does not apply. Other types of legal action may also arise as practice evolves.
When called upon to apply State aid rules to a case pending before it, a national court must respect any relevant Union rules in the area of State aid and the existing case law of the Union Courts. In addition, a national court may seek guidance by referring to the Commission's decision-making practice and the notices and guidelines concerning the application of the State aid rules adopted by the Commission.
Cooperation with the Commission
Given the key role which national courts play in the enforcement of the State aid rules, the Commission is committed to support national courts where they need assistance in reaching a decision on a pending case. Pursuant to Article 29 of Council Regulation (EU) 2015/1589 (the 'Procedural Regulation'), the cooperation with the can take three different forms:
- A national court may ask the Commission to transmit to it relevant information in its possession.
- A national court may ask the Commission for an opinion concerning the application of the State aid rules.
- The Commission, acting on its own initiative, may submit observations to national courts as amicus curiae.