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Cooperation with national courts (State aid)

Requests for opinions

Introduction

National courts play a decisive role in the enforcement of the State aid rules. The Commission is committed to assisting national courts where they find such assistance necessary for their decision on a pending case. For that purpose, the Commission Notice on the enforcement of State aid law by national courts provides practical and user-friendly information on how courts can best use the available cooperation tools.

When supporting national courts, the Commission must respect its duty of professional secrecy and safeguard its own functioning and independence. In fulfilling its duty of sincere cooperation under Article 4(3) of the Treaty on European Union (TEU) with national courts, the Commission is therefore committed to remaining neutral and objective. Since the Commission's assistance to national courts is part of its duty to defend the public interest, the Commission has no intention to serve the private interests of the parties to the case pending before the national court. The Commission will therefore not hear any of the parties involved in the national proceedings about its assistance to the national court.

Practical details on how to contact the Commission can be found here.

Requests for opinions

Scope

According to Article 29, paragraph 1 of Council Regulation (EU) 2015/1589 (the 'Procedural Regulation'), a national court may ask the Commission for its opinion on economic, factual and legal matters concerning the application of the State aid rules.

Possible subject matters for Commission opinions include, inter alia:

  • Whether a certain measure qualifies as State aid within the meaning of Article 107 TFEU and, if so, how the exact aid amount is to be calculated. In most cases, national courts can find some guidance in the Commission Notice on the notion of State aid as referred to in Article 107(1) TFEU. In addition, a national court may ask the Commission to give an opinion regarding each of the criteria under Article 107 TFEU (namely, the existence of an advantage, granted by a Member State or through State resources, possible distortion of competition and effect on trade between Member States).
  • Whether a certain aid measure meets a certain requirement of a Block Exemption Regulation so that no individual notification is necessary and the standstill obligation under Article 108(3) TFEU does not apply.
  • Whether a certain aid measure falls under a specific aid scheme which has been notified and approved by the Commission or otherwise qualifies as existing aid. Also in such cases, the standstill obligation under Article 108(3) TFEU does not apply.
  • Whether exceptional circumstances exist which would prevent the national court from ordering full recovery under Union law.
  • Where the national court is required to order the recovery of interest, it can ask the Commission for assistance as regards the interest calculation and the interest rate to be applied.
  • The legal requirements for damages claims under Community law and issues concerning the calculation of the damage incurred.

When giving its opinion, the Commission limits itself to providing the national court with the factual information or the economic or legal clarification sought, without considering the merits of the case pending before the national court. Moreover, unlike the authoritative interpretation of Union law by the Union Courts, the opinion of the Commission does not legally bind the national court.

Timing

The Commission endeavours to provide the national court with the requested opinion within four months from the date it receives the request.

Opinions issued

2018

Case National Court Commission opinion National Court
judgment
Summary & background
SA.43140 Support to renewable energy and CHP Latvian Administrative Court 12/12/2018
 lv en
Case is pending Questions from the Latvian court in relation to SA.43140 Support to renewable energy and CHP.
SA.34045 Thüringer Oberlandesgericht 14/06/2018 de [to be published by national court] Questions on SA.34045 and the German § 19 StromNEV and § 171f EnWG

2017

Case National Court Commission opinion National Court
judgment
Summary & background
Implementation of RES scheme Romanian court Court of Appeal of Bucharest 02/10/2017
ro
ro In the context of the approval of the RES scheme, SA.39042, the Romanian court asked whether Romanian Authorities could legitimately modify/clarify the implementation rules of the scheme, respecting the EIU decision and EU State Aid rules and which one of the rules (implementation as from the exemption decision per each beneficiary or the year of reference) is in line with the Commission's decision.

2016

Case National Court Commission opinion National Court
judgment
Summary & background
Milano sport Tribunale di Milano 14/12/2016 it RG 34610/2013
it
Does the measure constitute State aid?
State aid case involving free of charge use of land Verwaltungsgericht Berlin 08/02/2016
de
Case is pending

(VG 18 K 421.15)
Calculation of aid amount – free of charge use of land – Block-exemption – Services of general economic interest – Calculation of recovery interest

2014

Case National Court Commission opinion National Court
judgment
Summary & background
Overcompensation Raad van State 27/10/2014 nl nl Does overcompensation due to a calculation error made under an approved scheme constitute State aid and is it covered by the principle of legal certainty?
SA.37113 (2013/NN) Landgericht Münster 19/09/2014 de   Does the contract contain State aid and is it exempted under GBER?
Write-off debts Commercial Court, Zagreb 03/07/2014
 hr
Declaratory judgment
hr

Write-off of debts – pre-bankruptcy settlement – market economy creditor test; Does the write off of the debts by the state in the pre-bankruptcy settlement fulfil  the criteria of the market economy creditor test or does it constitute state aid?

Calculation method Administrative Court of Kuopio 19/06/2014,
  fi
fi

Method to determine market price for sale of shares

2013

Case National Court Commission opinion National Court
judgment
Summary & background

Calculating the net grant equivalent

Oberverwaltungsgericht Berlin-Brandenburg

17/10/2013 de

www.juris.de, search for "OVG 6 B 3.12"

Calculation of net grant equivalent in regional aid – Regional aid – Regional aid Guidelines

Notion of aid Consiglio di Stato 19/02/2013 it Case is pending Notion of aid
Notion of aid and de minimis aid Administrative Court of Kuopio 15/01/2013 en www.finlex.fi Notion of aid - de minimis aid insituation of a merger

2012

Case National Court Commission opinion National Court
judgment
Summary & background
Airport tariffs Consiglio di Stato 30/11/2012 it N/A Airport tariffs - Does their reduction represent State aid to airline(s) an airport operator?
Notion of undertaking Raad van State 14/11/2012 nl nl Notion of undertaking
Existance of State resources Oberlandesgericht Düsseldorf 11/10/2012 de N/A Existence of State resources in legislation for electricity tariffs

Application of State aid rules to the inland waterways sector

Rechtbank Dordrecht

02/10/2012
nl

www.rechtspraak.nl, search for "ECLI:NL:RBROT:2013:BZ5824"

Compensation of companies falling under Services of general economic interest
Airport cases Oberlandesgericht Koblenz 04/10/2012 de https://openjur.de,
search for "9 U 759/07"
Airport cases - notion of aid
Airport case Schleswig-Holsteinisches Oberlandesgericht 26/01/2012 de de Notion of aid

2011

Case National Court Commission opinion National Court
judgment
Summary & background
Gemeinschaftsaufgabe Verbesserung der regionalen Wirtschaftstruktur Staatsanwaltschaft Rostock 18/07/2011 de   Was aid granted under this scheme for a given project possibly illegal?

2009

Case National Court Commission opinion National Court
judgment
Summary & background
Hellenic Shipyards Athens Court of First Instance 29/07/2009 en el Would a certain measure qualify as State aid?
  
 Antitrust - State aid