Keywords
Summary

Keywords

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1. State aid - Plans to grant aid - Prohibition of giving effect to aid before the final decision of the Commission - Direct effect - Scope - Obligations of national courts - Role reserved to the Commission by the Treaty - No effect

(EEC Treaty, Arts 92 and 93)

2. State aid - Plans to grant aid - Grant of aid in contravention of the prohibition contained in Article 93(3) of the Treaty - Subsequent Commission decision declaring the aid to be compatible with the common market - Effect - Regularization ex post facto of national legal measures relating to the grant of the aid - None

(EEC Treaty, Art. 93(3) )

Summary

1. The implementation of the system of supervising State aid is a matter for both the Commission and, having regard to the direct effect which the last sentence of Article 93(3) of the Treaty has been held to have, the national courts. The immediate enforceability of the prohibition on implementation laid down in that article covers all aid implemented without being notified; in the event of notification, the prohibition produces its effects during the preliminary stage and, if the Commission sets in motion the contentious procedure, until the final decision. Breach by national authorities of the prohibition affects the validity of measures giving effect to aid. National courts must offer to individuals in a position to rely on such non-observance the certain prospect that all the necessary inferences will be drawn, in accordance with their national law, as regards the validity of those measures, the recovery of financial support granted in disregard of that provision and possible interim measures.

The fact that the Court has not found that the Commission has the power to declare aid illegal solely on the grounds that the obligation to notify had not been complied with and without having to investigate whether the aid is compatible with the common market has no effect on the obligations on national courts referred to above. The principal and exclusive role conferred on the Commission by Articles 92 and 93 of the Treaty is fundamentally different from the role of national courts. Whilst it is for the Commission alone to examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the prohibition on giving effect to aid, national courts do no more than preserve, until the final decision of the Commission and without deciding on the compatibility of the aid with the common market, the rights of individuals faced with a possible infringement by State authorities of the prohibition laid down by the last sentence of Article 93(3) of the Treaty.

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