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Gemeente Nijmegen v European Commission   ∙ T-251/13   ∙ Annotation by  Edoardo Gambaro and Francesco Mazzocchi

Annotation of the Order of the General Court (Fourth Chamber) of 3 March 2015 T-251/13 Gemeente Nijmegen v European Commission

Edoardo Gambaro, Francesco Mazzocchi

In Gemeente Nijmegen the General Court concluded that a Commission decision to initiate the formal investigation relating to a measure which was no longer in the course of implementation on the date of said decision could not be considered as a challengeable act. The General Court held that decisions relating to national measures completely implemented do not entail independent legal effects, since their scope is not immediate, certain and sufficiently binding in relation to the granting Member State and the beneficiary of the measure. The Court based its conclusion chiefly on the degree of discretion enjoyed by national courts in relation to the imposition of repayment obligations of the aid and measures that can be ordered pursuant to Article 108(3) TFEU following an opening decision of the Commission. It is argued that the distinction introduced by the General Court between decisions on implemented measures and decisions regarding measures in the course of implementation (which can generally be challenged before the EU Courts) can be blurred and may hinder legal certainty. Moreover, the alleged freedom that national courts have vis-à-vis an opening decision of the Commission – emphasised in the ruling – seems at odds with recent judgments of the CJEU, which suggest a high level of “deference” of national courts when dealing with the provisional findings of the Commission set out in Article 108(2) decisions.
Keywords: Actions for Annulment; Article 108(2) TFEU; Challengeable Acts; Powers of National Courts under Article 108(3) TFEU.

Edoardo Gambaro and Francesco Mazzocchi, Santa Maria Studio Legale Associato, Milan.


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