The Role of National Courts in the Enforcement of the European State Aid Rules

Abstract

After the judgment Deutsche Lufthansa, the role of national courts in the enforcement of the European State aid rules seems to be difficult to understand. Nevertheless, these difficulties are more theoretical than real. The role of national courts is linked to the direct effect of the standstill clause and to the activity of the Commission. On the basis of this clause, national courts protect individual rights against the premature enforcement of a measure of aid. In doing so, they are bound by the Commission’s decision to open the formal investigation procedure showing its doubts concerning the compatibility of the measure that was prematurely enforced. However, when the Commission has adopted no decision, they have to decide on its character of State aid. In addition, national courts have to decide in every case which are the appropriate remedies to offset the negative consequences of unauthorised granting of State aid. As will be seen, these are not limited to the recovery. A proper understanding of the role of national courts in the enforcement of State aid rules helps to answer the strong criticism raised by that judgment, which, in the light of the considerations made in this article, does not seem founded.