Keywords
Summary

Keywords

1. State aid — Planned aid — Notification to the Commission — Extent of the obligation — Notification must include the method of financing an account of its impact on the permissibility of the aid — (EC Treaty, Art. 93(3) (now Art. 88(3))

2. State aid — Planned aid — Prohibition of implementation before the Commission's final decision — Direct effect — Scope — Charges introduced to finance aid granted contrary to Community law — Obligation on national courts to order repayment — (EC Treaty, Art. 93(3) (now Art. 88(3) EC))

3. State aid — Planned aid — Grant of aid in breach of the prohibition laid down in Article 93(3) of the Treaty (now Article 88(3) EC) — Subsequent Commission decision declaring the aid compatible with the common market — Effect — Ex post facto regularisation of the national legal measures relating to the grant of the aid — None — (EC Treaty, Art. 93(3) (now Art. 88(3) EC))

4. State aid — Respective powers of the Commission and of national courts — No power of the Commission to order repayment of non-notified aid — (EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93(3) (now Art. 88(3) EC))

Summary

1. The method by which an aid is financed may render the entire aid scheme incompatible with the common market. Therefore, the aid cannot be considered separately from the effects of its method of financing and consideration of an aid measure by the Commission must necessarily also take into account the method of financing the aid in a case where that method forms an integral part of the measure.

In such a case, the notification of the aid provided for in Article 93(3) of the Treaty must also cover the method of financing, so that the Commission may consider it on the basis of all the facts. If this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible, when, if the Commission had been aware of its method of financing, it could not have been so declared.

Accordingly, in order to ensure the effectiveness of the obligation to notify and the Commission's full and appropriate consideration of an aid, the Member State is required, in order to comply with that obligation, to notify not only the planned aid in the narrow sense, but also the method of financing the aid inasmuch as that method is an integral part of the planned measure.

see paras 49-51

2. Where an aid measure of which the method of financing is an integral part has been implemented in breach of the obligation to notify, national courts must, as part of their task of upholding the rights of the persons concerned in the event of any breach by the national authorities of the prohibition laid down in the last sentence of Article 93(3) of the Treaty (now the last sentence of Article 88(3) EC) which has direct effect, take all the consequential measures under national law as regards both the validity of decisions giving effect to the aid measures concerned and the recovery of the financial support granted and thus in principle order reimbursement of charges or contributions levied specifically for the purpose of financing that aid.

see paras 54, 64

3. The Commission's final decision declaring aid incompatible with the common market does not have the effect of regularising ex post facto implementing measures which were invalid, when taken, because they had been taken in breach of the prohibition laid down by the last sentence of Article 93(3) of the Treaty (now the last sentence of Article 88(3), since otherwise the direct effect of that prohibition would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded. Any other interpretation would have the effect of according a favourable outcome to the non-observance of the last sentence of that provision by the Member State concerned and would deprive it of its effectiveness

see para. 63

4. In supervising the Member States' compliance with their obligations under Article 92 (now, after amendment, Article 87 EC) and 93 of the Treaty, (now Article 88 EC) the national courts and the Commission fulfil complementary and separate roles.

Whilst assessment of the compatibility of State aid with the common market falls within the exclusive competence of the Commission, subject to review by the Court, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aids to the Commission pursuant to Article 93(3) of the Treaty is infringed. Unlike the national courts, the Commission cannot therefore order the return of a State aid on the sole ground that it was not notified in accordance with Article 93(3) of the Treaty

see paras 74-76