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A New Boost to National Recovery? · Case C‑349/17 Eesti Pagar · Annotation by Svein Terje Tveit journal article

Annotation on the Judgment of the Court (Grand Chamber) of 5 March 2019 in Case C‑349/17 Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium.

Svein Terje Tveit

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 186 - 191

On 5 March 2019, the Grand Chamber of the Court of Justice of the European Union (CJ) issued an important ruling clarifying the scope of the national authorities’ obligation to recover unlawful State aid and the test for ‘incentive effect’ — a requirement for an aid measure to benefit from the General Block Exemption Regulation (GBER). The CJ confirms that national authorities must recover unlawful State aid also in cases where the aid is granted (wrongfully) under the GBER as regional investment aid and the Commission has not adopted any Decision. The aid beneficiary may not rely on the principle of protection of legitimate expectations even if the granting authority had recommended the aid beneficiary to apply for aid knowing that work on the project had begun before the aid application was submitted. In cases where the EU rules on limitation period and interests are not directly applicable, national rules apply, so that the national authorities must seek full recovery of the unlawful aid and thereby ensure the effectiveness of State aid rules. Keywords: GBER; Recovery; National enforcement; Unlawful aid; National legal basis.


The Never Ending ‘Saga’ of the Fallimento Traghetti del Mediterraneo · Case C-387/17 Traghetti del Mediterraneo · Annotation by Alessandra Franchi journal article

Annotation of the judgment of the Court of Justice (First Chamber) of 23 January 2019 in Case C-387/17 Presidenza del Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo

Alessandra Franchi

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 391 - 397

This judgment continues the ‘saga’ related to the litigation between Fallimento Traghetti del Mediterraneo and the Italian State concerning the unlawful State aid granted to Tirrenia di Navigazione SpA as compensation for public service obligations from 1976 to 1980 and shows the complexity of the assessments by national courts on damages related to the granting of unlawful State aid. The CJ provides guidance on the notion of existing aid, clarifying that State aid measures which were granted in a period when the maritime cabotage market was not yet liberalized at Union level cannot be classified as existing aid because of the merely formal absence of liberalisation of that market, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition. The CJ also emphasises the cooperation obligation of the national courts and their role in awarding damages related to the distortion of competition created by unlawful State aid. Member State cannot invoke the principle of legitimate expectation in case of breach of the notification obligation set in Article 108 (3) TFEU. Finally, the CJ clarifies that the ten-year limitation period set out in Article 15, paragraph 1, of Regulation 659/1999 (repealed by Regulation 2015/1589), only applies to Commission investigation under Article 108, paragraph 3, TFEU and only refers to the Commission’s power and time limit for recovery of illegal aid, but does not apply in damages proceedings before the national jurisdictions. Keywords: Existing aid; Recovery; National enforcement; Prescription; Damages.

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