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Cooperation with national courts (State aid)

Requests for information or opinion on State aid issues

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.  The notice is also inspired by the Antitrust Cooperation Notice.

Article 23a of the State Aid Procedural Regulation (Council Regulation 659/1999, as amended Council Regulation 734/2013), codifies the means of cooperation between national courts and the Commission: requests for information and opinion from national courts to the Commission and amicus curia observation submitted to national courts on the Commission's own initiative.

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 information

Scope

According to Article 23a(1) of the Procedural Regulation, a national court may ask the Commission for information in its possession. A request may typically relate to:

  • Information concerning a pending Commission procedure; this can, inter alia, include information on whether a procedure regarding a particular aid measure is pending before the Commission, whether a certain aid measure has been duly notified in accordance with Article 108(3) of the Treaty on the Functioning of the European Union (TFEU), whether the Commission has initiated a formal investigation, and whether the Commission has already taken a decision. In the absence of a decision, the national court may ask the Commission to clarify when this is likely to be adopted.
  • In addition, national courts may ask the Commission to transmit documents in its possession. This can include copies of existing Commission decisions to the extent that these decisions are not already published on the Commission's website, factual data, statistics, market studies and economic analysis.

In transmitting information to national courts, the Commission needs to uphold the guarantees given to natural and legal persons under Article 339 TFEU. This article prevents members, officials and other servants of the Commission from disclosing information which is covered by the obligation of professional secrecy. This can include confidential information and business secrets.

Articles 4(3) TEU and 339 TFEU do not lead to an absolute prohibition for the Commission to transmit to national courts information covered by professional secrecy. As confirmed by the Community courts, the duty of loyal cooperation requires the Commission to provide the national court with whatever information the latter may seek. This also includes information covered by the obligation of professional secrecy.

Where it intends to provide information covered by professional secrecy to a national court, the Commission will therefore remind the court of its obligations under Article 339 TFEU. It will ask the national court whether it can and will guarantee the protection of such confidential information and business secrets. Where the national court cannot offer such a guarantee, the Commission will not transmit the information concerned. Where, on the other hand, the national court has offered such a guarantee, the Commission will transmit the information requested.

There are further scenarios where the Commission may be prevented from disclosing information to a national court. In particular, the Commission may refuse to transmit information to a national court where such transmission would interfere with the functioning and independence of the Communities. This would be the case where disclosure would jeopardise the accomplishment of the tasks entrusted to the Commission (for example, information concerning the Commission's internal decision making process).

Timing

The Commission will endeavour to provide the national court with the requested information within one month from the date it receives the request.


Requests for opinions

Scope

According to Article 23a(1) of the Procedural Regulation 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. Such opinions can relate to 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 Community 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 prerequisites for damages claims under Community law and issues concerning the calculation of the damage incurred.

When giving its opinion, the Commission will limit 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 Community law by the Community courts, the opinion of the Commission does not legally bind the national court.

Timing

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

Requests for preliminary rulings (Article 267 TFEU)

The right of a national court to request the Commission for an opinion is of course without prejudice to the possibility or the obligation of the national court to ask the European Court of Justice for a preliminary ruling under Article 267 TFEU

The authoritative interpretation of Community law by the Court of Justice is binding on the national court, in contrast to the opinion of the Commission.

A preliminary ruling of the European Court of Justice concerns the interpretation of the law of the European Union and the validity of acts of secondary legislation, whereas a national court may ask the Commission for its opinion on economic, factual and legal matters.

Amicus curiae

Since August 2013, the Commission has the possibility to submit, on its own initiative, amicus curiae observations to the national courts under Article 23 a paragraph 2 of the Procedural Regulation.


  
 Antitrust - State aid