Keywords
Summary

Keywords

State aid - Recovery of unlawful aid - Application of national law - Aid granted in breach of the procedure laid down in Article 93 of the Treaty - Legal certainty - Possible legitimate expectation on the part of the recipients - Protection - Conditions and limits - Interests of the Community to be taken into account

(EC Treaty, Article 93)

Summary

In principle the recovery of aid must take place in accordance with the relevant procedural provisions of national law, subject however to the proviso that those provisions are to be applied in such a way that the recovery required by Community law is not rendered practically impossible. In particular, the interests of the Community must be taken fully into consideration in the application of a provision which requires the various interests involved to be weighed up before a defective administrative measure is withdrawn.

In that connection, although the Community legal order cannot preclude national legislation which provides that the principles of the protection of legitimate expectations and legal certainty are to be observed with regard to recovery, nevertheless, in view of the mandatory nature of the supervision of State aid by the Commission under Article 93 of the Treaty, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article. A diligent businessman should normally be able to determine whether that procedure has been followed, even if the State in question was responsible for the illegality of the decision to grant aid to such a degree that its revocation appears to be a breach of good faith.

Furthermore, where State aid is found to be incompatible with the common market, the role of the national authorities is merely to give effect to the Commission's decision. Since the national authorities do not have any discretion in the matter, even if they have allowed the time-bar provided for in national law in respect of revocation of the decision granting the aid to come into effect, the recipient of unlawfully granted aid ceases to be in a state of uncertainty once the Commission has adopted a decision finding the aid incompatible with the common market and requiring recovery.

Consequently, Community law requires the competent authority to revoke a decision granting unlawful aid, in accordance with a final decision of the Commission declaring the aid incompatible with the common market and ordering recovery, even if:

- the authority has allowed the time-limit laid down for that purpose under national law in the interest of legal certainty to elapse;

- the authority is responsible for the illegality of the aid decision to such a degree that revocation appears to be a breach of good faith towards the recipient, where the latter could not have had a legitimate expectation that the aid was lawful because the procedure laid down in Article 93 of the Treaty has not been followed; and

- national law excludes recovery because the gain no longer exists, in the absence of bad faith on the part of the recipient of the aid, since such a situation is the rule in the case of State aid, which is generally granted to undertakings in difficulty, whose balance sheet, when aid is recovered, no longer reveals the added value indisputably resulting from the aid.