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RegioJet a.s. and STUDENT AGENCY k.s., by O. Doležal, advokát,

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České dráhy a.s., by J. Kindl and K. Muzikář, advokáti,

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the European Commission, by P. Němečková, A. Steiblytė and B. Stromsky, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 108(3) TFEU and Article 17(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

2

The request has been made in proceedings between RegioJet a.s., STUDENT AGENCY k.s. and České dráhy, a.s., a railway undertaking governed by Czech law, and Správa železnic, státní organizace (National Railway Administration, Czech Republic), the railway infrastructure manager in the Czech Republic, and Česká republika, Ministerstvo dopravy (Ministry of Transport, Czech Republic), concerning the recovery of State aid allegedly received by České dráhy.

3

Article 1(b)(iv) and (f) of Regulation 2015/1589 provides:

‘For the purposes of this Regulation, the following definitions shall apply:

…

(b) “existing aid” means

…

…

4

Article 17 of Regulation 2015/1589 provides:

‘1.   The powers of the [European] Commission to recover aid shall be subject to a limitation period of 10 years.

2.   The limitation period shall begin on the day on which the unlawful aid is awarded to the beneficiary either as individual aid or as aid under an aid scheme. Any action taken by the Commission or by a Member State, acting at the request of the Commission, with regard to the unlawful aid shall interrupt the limitation period. Each interruption shall start time running afresh. The limitation period shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.

3.   Any aid with regard to which the limitation period has expired shall be deemed to be existing aid.’

5

Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), contained provisions identical to those in Article 17 of Regulation 2015/1589.

6

On 26 June 2008, České dráhy, a railway undertaking established in the Czech Republic, concluded a contract with the National Railway Administration, under which the former transferred part of its undertaking to the latter.

7

RegioJet and STUDENT AGENCY, competitors of České dráhy, claim that the price obtained by the latter in the context of that transaction constitutes State aid within the meaning of Article 107(1) TFEU and that it is unlawful since it was neither notified to the Commission nor authorised by it.

8

The dispute which arose before the Czech courts on the subject was brought before the Nejvyšší soud (Supreme Court, Czech Republic).

9

That dispute raises, in particular, the question of whether the expiry of the limitation period laid down in Article 17(1) of Regulation 2015/1589 can be relied on in a national court hearing an application for recovery of unlawful State aid.

10

In those circumstances the Nejvyšší soud (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the last sentence of Article 108(3) [TFEU] be interpreted as meaning that a national court must, in proceedings initiated on the application of a third party (competitor), order the recipient to return aid provided in breach of that provision even though (as at the date of the court’s decision) the limitation period for the Commission’s powers pursuant to Article 17(1) of [Regulation 2015/1589] has expired, due to which the aid provided is deemed, pursuant to Article 1(b)(iv) and Article 17(3) of the [regulation], to constitute existing aid?’

11

By its question, the referring court asks, in essence, whether Article 108(3) TFEU must be interpreted as meaning that national courts may order the repayment of State aid granted in breach of the obligation of prior notification laid down in that provision, even though the limitation period laid down in Article 17(1) of Regulation 2015/1589 has expired in respect of that aid, such that that aid must be regarded as existing aid pursuant to Article 1(b)(iv) and Article 17(3) of that regulation.

12

As a preliminary point, it must be noted that the question asked is based on several premisses and, inter alia, on the fact that the measure at issue is State aid within the meaning of Article 107(1) TFEU, which it is for the referring court to verify, in particular in the light of the information available to it and any assessments made by the Commission in the context of the analysis of the complaint submitted to it concerning that measure.

13

As regards the question asked, it should be borne in mind that, according to settled case-law, the national courts and the Commission fulfil complementary and separate roles. Whilst assessment of the compatibility of aid measures with the internal market falls within the exclusive competence of the Commission, subject to review by the EU Courts, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aid to the Commission pursuant to Article 108(3) TFEU is infringed (judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraphs 37 and 38 and the case-law cited).

14

Consequently, national courts must offer to individuals entitled to rely on disregard of the obligation of notification the certain prospect that all appropriate conclusions will be drawn, in accordance with national law, with regard to both the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision or possible interim measures (judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 47 and the case-law cited).

15

In respect of the effect, in that regard, of the possible expiry of the 10-year time limit provided for in Article 17(1) of Regulation 2015/1589, it is necessary, first of all, to recall that that regulation contains rules of a procedural nature which apply to all administrative procedures in the matter of State aid pending before the Commission, that it codifies and reinforces the Commission’s practice in reviewing State aid and does not contain any provision relating to the powers and obligations of the national courts, which continue to be governed by the provisions of the Treaty as interpreted by the Court (see, to that effect, judgments of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraph 66 and the case-law cited, and of 30 April 2020, Nelson Antunes da Cunha, C‑627/18, EU:C:2020:321, paragraph 32).

16

Next, the Court has also stated that it is only the powers of the Commission to recover State aid that are referred to in Article 17(1) of Regulation 2015/1589 (see, by analogy, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraphs 52 and 61, and, to that effect, judgment of 30 April 2020, Nelson Antunes da Cunha, C‑627/18, EU:C:2020:321, paragraph 30).

17

Thus, the Court has held that the expiry of that limitation period cannot have the effect of retroactively legalising State aid vitiated by illegality merely because it becomes existing aid and, consequently, of depriving of any legal basis an action for damages brought against the Member State concerned by individuals and competitors affected by the grant of the unlawful aid. Any other interpretation would amount to reducing the scope of the obligation on the Member States to notify the aid measures and thus to depriving Article 108(3) TFEU of its practical effect (see, to that effect, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraphs 62 and 63).

18

Furthermore, the Court has also clarified that that limitation period cannot be applied, neither directly, nor indirectly, nor by analogy, to the procedure for recovery of unlawful aid by the competent national authorities (see, to that effect, judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 109).

19

It is appropriate, in that regard, to note that, where there is no EU legislation on the subject, the unlawful aid must be recovered in accordance with the rules for implementation laid down by the applicable national law (see, to that effect, judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 108). In that context, the limitation rules that might be applicable are, therefore, those of national law, subject to the principles of effectiveness and equivalence (see, to that effect, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraph 73).

20

As regards the arguments of the recipient undertaking, České dráhy, which claims that, in the case of existing aid, which falls within the scope of Article 108(1) TFEU, the national courts do not have the power to order its recovery, it should be noted that the case in the main proceedings concerns a particular situation in which Article 108(3) TFEU was infringed when the aid at issue was granted. As has been recalled in paragraph 17 of the present judgment, the expiry of the limitation period laid down in Article 17(1) of Regulation 2015/1589 does not have the effect of retroactively regularising State aid vitiated by illegality merely because it becomes existing aid.

21

In the light of the foregoing, the answer to the question referred is that Article 108(3) TFEU must be interpreted as meaning that national courts may order the repayment of State aid granted in breach of the obligation of prior notification laid down in that provision, even though the limitation period laid down in Article 17(1) of Regulation 2015/1589 has expired in respect of that aid, such that that aid must be regarded as existing aid pursuant to Article 1(b)(iv) and Article 17(3) of that regulation.

22

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 108(3) TFEU

must be interpreted as meaning that national courts may order the recovery of State aid granted in breach of the obligation of prior notification laid down in that provision, even though the limitation period laid down in Article 17(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU has expired in respect of that aid, such that that aid must be regarded as existing aid pursuant to Article 1(b)(iv) and Article 17(3) of that regulation.