# C_2017269EN.01001201.xml

| 14.8.2017 | EN | Official Journal of the European Union | C 269/12 |
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14.8.2017

EN

Official Journal of the European Union

C 269/12

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Request for a preliminary ruling from the Tallinna Ringkonnakohus (Estonia) lodged on 13 June 2017 — Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium

(Case C-349/17)

(2017/C 269/17)

Language of the case: Estonian

Referring court

Referring court

Tallinna Ringkonnakohus

Parties to the main proceedings

Parties to the main proceedings

Appellant: Eesti Pagar AS

Appellant:

Respondents: Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium

Respondents:

Questions referred

Questions referred

| (a) | Is Article 8(2) of Commission Regulation (EC) No 800/2008 (1) declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation) to be interpreted as meaning that, in the context of that provision, where the activity to be supported is, for example, the acquisition of an industrial plant, ‘work on the project or activity’ has started when the agreement for the purchase of the relevant plant has been entered into? Are the Member State authorities authorised to assess an infringement of the criterion mentioned in that provision in light of the costs of withdrawal from an agreement which contravenes the requirement of an incentive effect? If the Member State authorities have such authority, what level of costs (in percentage terms) incurred by withdrawal from the agreement may be deemed to be sufficiently marginal from the aspect of meeting the requirement of the incentive effect? |
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(a)

Is Article 8(2) of Commission Regulation (EC) No 800/2008 (1) declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation) to be interpreted as meaning that, in the context of that provision, where the activity to be supported is, for example, the acquisition of an industrial plant, ‘work on the project or activity’ has started when the agreement for the purchase of the relevant plant has been entered into? Are the Member State authorities authorised to assess an infringement of the criterion mentioned in that provision in light of the costs of withdrawal from an agreement which contravenes the requirement of an incentive effect? If the Member State authorities have such authority, what level of costs (in percentage terms) incurred by withdrawal from the agreement may be deemed to be sufficiently marginal from the aspect of meeting the requirement of the incentive effect?

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| (b) | Is a Member State authority obliged to recover an unlawful aid granted by it even if the European Commission has not adopted a corresponding decision? |
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(b)

Is a Member State authority obliged to recover an unlawful aid granted by it even if the European Commission has not adopted a corresponding decision?

| (c) | Can a Member State authority which decides to grant an aid — on the erroneous assumption that it is an aid that accords with the block exemption requirements, but which is in fact an unlawful aid — engender a legitimate expectation on the part of the aid recipients? Is, in particular, the fact that the Member State authority is aware, on granting the unlawful aid, of the circumstances causing the aid not to be covered by the block exemption sufficient to give rise to a legitimate expectation on the part of the recipients?
  If the preceding question is answered affirmatively, must the public interest and the interest of the individual be weighed against one another? In the context of that weighing-up of interests, is it significant whether, in relation to the aid at issue, the European Commission has adopted a decision declaring it incompatible with the common market? |
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(c)

Can a Member State authority which decides to grant an aid — on the erroneous assumption that it is an aid that accords with the block exemption requirements, but which is in fact an unlawful aid — engender a legitimate expectation on the part of the aid recipients? Is, in particular, the fact that the Member State authority is aware, on granting the unlawful aid, of the circumstances causing the aid not to be covered by the block exemption sufficient to give rise to a legitimate expectation on the part of the recipients?

If the preceding question is answered affirmatively, must the public interest and the interest of the individual be weighed against one another? In the context of that weighing-up of interests, is it significant whether, in relation to the aid at issue, the European Commission has adopted a decision declaring it incompatible with the common market?

| (d) | Which limitation period applies to the recovery of an unlawful aid by a Member State authority? Is that period ten years, corresponding to the period after which, under Articles 1 and 15 of Council Regulation (EC) No 659/1999 (2) laying down detailed rules for the application of Article 93 of the EC Treaty, the aid becomes existing aid and can no longer be recovered, or four years in accordance with Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 (3) on the protection of the European Communities’ financial interests?
  What is the legal basis for such recovery where the aid was granted from a structural fund: Article 108(3) TFEU or Council Regulation (EC, Euratom) No 2988/95 on the protection of the European Communities’ financial interests? |
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(d)

Which limitation period applies to the recovery of an unlawful aid by a Member State authority? Is that period ten years, corresponding to the period after which, under Articles 1 and 15 of Council Regulation (EC) No 659/1999 (2) laying down detailed rules for the application of Article 93 of the EC Treaty, the aid becomes existing aid and can no longer be recovered, or four years in accordance with Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 (3) on the protection of the European Communities’ financial interests?

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What is the legal basis for such recovery where the aid was granted from a structural fund: Article 108(3) TFEU or Council Regulation (EC, Euratom) No 2988/95 on the protection of the European Communities’ financial interests?

| (e) | If a Member State authority recovers an unlawful aid, is it then obliged to demand from the recipient the payment of interest on the unlawful aid? If so, which rules will then apply to the calculation of the interest, inter alia, as regards the rate of interest and the calculation period? |
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(e)

If a Member State authority recovers an unlawful aid, is it then obliged to demand from the recipient the payment of interest on the unlawful aid? If so, which rules will then apply to the calculation of the interest, inter alia, as regards the rate of interest and the calculation period?

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(1)  OJ 2008 L 214, p. 3.

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(2)  OJ 1999 L 83, p. 1.

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(3)  OJ 1995 L 312, p. 1, corrigendum OJ 1998 L 36, p. 16.

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