State Aid Cases in National Courts and the European Commission

Abstract

INTRODUCTION Presumably, for national courts’ magistrates participating in the present conference and, for that matter, equally for members of any national court as well as the EU courts the substance of state aid cases pertains to the most intriguing and elusive material they ever work with. This may not be very surprising in view of the complexity of state aid regulation as relating to direct control by the European Commission on economic policy measures of Member States, not only those undertaken by central government authorities but also those taken by local and regional bodies, often concerning policies in areas of more or less sensitive interests on which the state aid control may exercise an unexpected impact. Which policy maker would have thought that an Eco tax in Britain1, a social housing scheme in the Netherlands or nature conservation measures in Germany would come under state aid review, to mention but a few examples. Looking at the provisions of Articles 107 and 108 of the TFEU, the first impression may be that state aid control is a bilateral matter between the Commission and the Member State under review. This is indeed the main structural feature also reappearing in the implementing provisions of Regulation (EC) no. 659/1999, even after its recent modification by Regulation(EU) no. 734/2013 which qualifies interested market participants as ‘market information tools’ at the Commission's disposal for purposes of preparing a file. The image is considerably different, however, when looking more closely at the interests of aid beneficiaries and their competitors on the market on which they operate. This is where the national courts come into the picture in view of the protection of their legal interests. In this perspective it appears appropriate, first, to highlight the distinct roles of the European Commission and national courts in this area, then, to look somewhat closer at the role of national courts in state aid litigation and, third, to identify instruments of liaison and cooperation between the EU and national levels of shared decision making and judicial review.