Application of EU State Aid Law by National Courts

Abstract

This paper analyses the issues at stake when national courts apply EU rules on State aid (private enforcement), including the interaction between proceedings before the Commission and proceedings before national courts. These issues are of interest to undertakings in receipt of State aid (which are interested in the procedural rules laid down in Article 108.3 of the Treaty being strictly complied with), but also the competitors of undertakings in receipt of State aid that has not been cleared by the Commission (when required). Based on the direct effect of Article 108.3 of the Treaty, competitors may obtain greater legal certainty and protection from national courts than that achieved by merely filing a complaint with the Commission, since the Commission has complete discretion as to whether or not to start proceedings aimed at analysing the legality of State aid. 
In general terms, the advantages and remedies from which competitors may benefit by pursuing litigation before national courts include: (a) the courts’ obligation to deal with State aid matters submitted to them, in contrast to the discretion the Commission enjoys when deciding whether or not to start proceedings; (b) the courts’ powers —not held by the Commission— to order precautionary measures and that allow them to order the immediate return of State aid; and (c) the wide powers held by the courts (regardless of whether they deal with public law or private law matters), acknowledged by both the ECJ’s case law and national laws, allowing them to order the return of illegal State aid or to prevent illegal State aid being disbursed merely because the Commission has not been notified of it or has not cleared it. Furthermore, the courts may adopt additional measures under national laws pursuant to the principle of procedural and institutional autonomy.