1. State aid – Planned aid – Granting of aid contrary to the prohibition laid down by Article 88(3) EC – Subsequent Commission decision declaring the aid compatible with the common market – Obligations of national courts before which claims for repayment are brought
(Art. 88(3) EC)
2. State aid – Planned aid – Granting of aid contrary to the prohibition laid down by Article 88(3) EC – Subsequent Commission decision declaring the aid compatible with the common market – Annulment of that decision by the Community court – Retroactivity – Recipients’ legitimate expectations – None save for exceptional circumstances
(Arts 88(3) EC, 231, first para., EC and 249 EC)
1. In a situation where a claim based on the last sentence of Article 88(3) EC is examined after the Commission has adopted a positive decision, the national court, notwithstanding the declaration of the compatibility of the aid in question with the common market, must adjudicate on the validity of the implementing measures and on the recovery of the financial support granted. In such a case, Community law requires that court to order the measures appropriate effectively to remedy the consequences of the unlawfulness. However, even in the absence of exceptional circumstances, Community law does not impose an obligation of full recovery of the unlawful aid.
The last sentence of Article 88(3) EC is based on the preservative purpose of ensuring that compatible aid alone is implemented. In order to achieve that purpose, the implementation of planned aid is to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision. When the Commission adopts a positive decision, it is then apparent that such purpose has not been frustrated by the premature payment of the aid. In that case, from the point of view of operators other than the recipient of such aid, its unlawfulness will, first, expose them to the risk, in the result unrealised, of the implementation of incompatible aid, and, second, make them suffer, depending on the circumstances earlier than they would have had to, in competition terms, the effects of compatible aid. From the aid recipient’s point of view, the undue advantage will have consisted, first, in the non-payment of the interest which it would have paid on the amount in question of the compatible aid, had it had to borrow that amount on the market pending the Commission’s decision, and, second, in the improvement of its competitive position as against the other operators in the market while the unlawfulness lasts. The national court must therefore, applying Community law, order the aid recipient to pay interest in respect of the period of unlawfulness.
Within the framework of its domestic law, the national court may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State’s right to re‑implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid.
(see paras 45-53, 55, operative part 1)
2. When the Community court annuls a Commission decision declaring compatible with the common market aid which, contrary to the prohibition laid down by the last sentence of Article 88(3) EC, had been implemented without awaiting the Commission’s final decision, the presumption of the lawfulness of the acts of the Community institutions and the rule that annulment is retroactive apply in turn. Aid implemented after the Commission’s positive decision is presumed lawful until the Community court decides to annul that decision and subsequently, on the latter decision, the aid is deemed, in accordance with the first paragraph of Article 231 EC, not to have been declared compatible by the annulled decision, with the result that its implementation must be regarded as unlawful. It is thus apparent that, in that case, the rule arising from the first paragraph of Article 231 EC puts a stop, retroactively, to the application of the presumption of lawfulness.
Whilst it is true that a recipient cannot be precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus from declining to refund that aid, on the other hand the mere existence of the subsequently annulled positive decision cannot be regarded as capable of having caused such an expectation. Where an action for annulment has been brought against a positive decision, the recipient is not entitled to harbour any assurance as to the lawfulness of the aid so long as the Community court has not delivered a definitive ruling.
It follows that, where a Commission decision declaring compatible with the common market aid implemented in breach of the last sentence of Article 88(3) EC is annulled by the Community court, the obligation arising from that provision to remedy the consequences of the aid’s unlawfulness extends also, for the purposes of calculating the sums to be paid by the recipient, and save for exceptional circumstances, to the period between that adoption of the Commission’s positive decision and its annulment by the Community court.
(see paras 62-69, operative part 2)