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Dual Remedy Against State Aid Decisions · Case C-135/16 Georgsmarienhütte · Annotation by Rene Brunner journal article

Annotation on the Judgment of the Court of Justice (Grand Chamber) of 25 July 2018 in Case C-135/16 Georgsmarienhütte GmbH and Others v Bundesrepublik Deutschland.

Rene Brunner

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 413 - 417

On 25 July 2018, the Court of Justice of the European Union handed down a ruling on the admissibility of the request for a preliminary ruling on the validity of a Commission Decision where the applicants in the main proceedings did not bring an action for annulment against that Decision before the General Court. The judgment Georgsmarienhütte re-evaluates the interrelationship between the action for annulment and the preliminary reference procedure and is, in essence, a reiteration of the TWD doctrine established already in 1994. Keywords: Action for annulment; Preliminary ruling procedure; Dual remedy; Parallel proceedings; National courts; TWD doctrine.




State Aid and the Free Movement Provisions · Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst · Annotation by Marc Custers and Boyd Wolffers journal article

Annotation on the Judgment of the Court of Justice (First Chamber) of 2 May 2019 in Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst.

Marc Custers, Boyd Wolffers

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 561 - 566

This annotation explores the relation between the free movement provisions and State aid in the light of the A-Fonds Case. In A-Fonds, the Court of Justice of the European Union dealt with the question whether a national court may conclude that a measure infringes the freedom of capital with respect to a measure that had been declared State aid by the Commission. A finding that the national court may test the contested measure against the free movement provisions (for the years that the measure constituted existing aid) would have as its result that the measure must be made available to comparable foreign taxpayers. Existing aid should in that case be extended. But that would not have been the only result: such conclusion would have broad consequences. The CJ rules in the A-Fonds Case that the national court may not test the contested measure against the free movement provisions, but has ruled differently in other Cases when dealing with the same issue. This annotation provides an analysis of the different approaches that the CJ took when deciding whether a State aid measure may be tested against the free movement provisions together with the consequences of the different approaches. Keywords: Free movement provisions; Freedom of capital; Existing aid; New aid; National courts; Direct taxation.


Italian Court Awards Damages to Beneficiaries for Unlawful Implementation of Aid  ∙ Court of Appeal of Cagliari of 13 June 2017 ∙ Annotation  by Francesco Maria Salerno and Federico Macchi journal article

Annotation on the Judgment of the Court of Appeal of Cagliari of 13 June 2017

Francesco Maria Salerno, Federico Macchi

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 311 - 315

The case in comment illustrates the application of State aid rules by a national court. Moreover, the case deserves to be brought to the attention of a wide readership because it concerns a rare case of award for damages to the beneficiary of the aid. By adjudicating in favour of the beneficiary, the Italian court recognized the peculiarities of the case at issue. At the same time, the ruling raises general questions of consistency with EU law, which are likely to become even more salient as the cooperation between Commission and national courts in the enforcement of State aid rules increases. Keywords: National courts; Damages; State liability; Legitimate expectations.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ The Altmark Case Revisited: Local and Regional Subsidies to Public Services journal article

Erika Szyszczak

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 395 - 407

The evolution of the State aid rules has made incursions into the sovereignty of the Member States to identify, fund and operate public services (SGEI). This sensitive issue tends to be managed by the European Commission with few cases brought before the national courts or referred to the CJEU. Nevertheless, national courts may be faced with a growing number of challenges in understanding and applying the European Commission policy and the European Courts’ case law in this area. The article provides an overview of some of the recent policy developments and case law to highlight the legal complexities of applying State aid to public services. Keywords: SGEI; Altmark; Public Services; National Courts.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ State Aid Assessment: What National Courts Can Do and What They Must Do journal article

Jose Luis Buendía Sierra, Miguel Ángel Bolsa Ferruz

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 408 - 417

The article explores the powers and duties of national courts when they enforce EU State aid law, particularly when, by virtue of the stand-still obligation pursuant to Article 108(3) of the Treaty on the Functioning of the European Union, they are faced with the assessment of whether a national measure constitutes illegal State aid. It also analyses a number of mechanisms or tools available in this context for national courts to cooperate with the European Commission and the European Courts, with the primary objective of preventing contradictory decisions or judgments rendered by different authorities at national and EU level. In this vein, the article also critically reviews the 2009 Commission Notice on the enforcement of State aid by national courts, which in the authors’ view sometimes goes beyond what is required by the applicable case law. The scope of measures available for national judges is certainly much wider than the scope of measures imposed on national judges. Keywords: Powers and Duties of National Courts; 2009 Commission Notice; State Aid Enforcement.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ The Application of the ECJ’s Criteria Developed in the Case Deutsche Lufthansa by National German Courts journal article

The Flughafen Lübeck/Air Berlin Case

Annegret Garbe

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 449 - 454

In this decision, the German Federal High Court reviews the scope of protection for a private competitor in cases of unlawful State aid before national courts. Based on the jurisdiction of the European Court of Justice, this decision discusses in detail the powers and obligations of a national court in situations where the Commission has opened an investigation procedure, but not yet taken a final decision as to whether or not the measure at stake involves State aid and – if so – is compatible with the internal market. Keywords: Unlawful State Aid; Deutsche Lufthansa; Lübeck; German National Court.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Hic Sunt Leones: Private Enforcement of State Aid Law in Slovakia journal article

Juraj Gyárfaš

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 455 - 469

From the point of view of EU law, the private enforcement of State aid law, i.e. litigation initiated by private parties before a national court with the aim of preventing the payment of State aid, achieving its recovery or claiming damages, appears to be fairly straightforward. Both the substantive and procedural bases of such claims are relatively clearly set out in the case law of the CJEU and in EC soft law. However, when attempting to translate these EU law guidelines into an actual action under national law, a number of procedural as well as substantive problems arise. There is no unified legal framework and various overlapping areas of national law need to be analysed, in particular public law, general tort law, unfair competition law, State liability law, civil procedure and administrative procedure. This may be one of the reasons why such actions are virtually unknown in Slovakia. The article draws on inspiration mainly from German and Austrian case law and analyses how such claims could be framed under Slovak law. It concludes with the question of whether greater harmonisation could facilitate the development of private enforcement of EU State aid law. Keywords: Private Enforcement; Slovak Republic; Unlawful Aid; Compatible Aid.


ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Recovering Unlawful and Incompatible Aids by National Courts: CELF and Scott/Kimberly Clark Cases journal article

Denis Jouve

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 367 - 376

In CELF and Scott/Kimberly Clark cases, the Court of Justice clarified the role and the power of national courts to recover unlawful State aids. This fundamental role to protect individuals’ rights varies depending on Commission intervention. When the Commission has issued a final decision, national courts become the guardian of this decision, they have to control the execution in national law. In this situation, their room for manoeuvre is reduced. Pending a final Commission decision, it is for the national court to safeguard the rights of individuals and the effectiveness of Article 108(3) of the Treaty. Therefore, national courts shall take all relevant measures in order to protect individuals’ rights and to stop unlawfulness. It is forced to act even if Commission has decided on State aid compatibility but it has more freedom and it is possible to not order recovery. Keywords: Recovery; Unlawful Aid; Incompatible Aid; National Courts; CELF; Scott/Kimberly Clark.