# C_2006294EN.01000802.xml

| 2.12.2006 | EN | Official Journal of the European Union | C 294/8 |
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2.12.2006

EN

Official Journal of the European Union

C 294/8

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Judgment of the Court (Third Chamber) of 5 October 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Transalpine Ölleitung in Österreich GmbH, Planai-Hochwurzen-Bahnen GmbH, Gerlitzen-Kanzelbahn-Touristik GmbH & Co KG v Finanzlandesdirektion für Tirol, Finanzlandesdirektion für Steiermark, Finanzlandesdirektion für Kärnten

(Case C-368/04) (1)

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(State aid - Last sentence of Article 88(3) EC - Partial rebate on energy taxes - Failure to give notice of the aid - Commission decision - Declaration of the compatibility of the aid with the common market in respect of a particular period in the past - Effect on rebate applications made by undertakings not benefiting from the aid - Powers of national courts and tribunals)

(2006/C 294/13)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Transalpine Ölleitung in Österreich GmbH, Planai-Hochwurzen-Bahnen GmbH, Gerlitzen-Kanzelbahn-Touristik GmbH & Co KG

Applicants:

Defendants: Finanzlandesdirektion für Tirol, Finanzlandesdirektion für Steiermark, Finanzlandesdirektion für Kärnten

Defendants:

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Article 88(3) EC — State aid granted in breach of the prohibition on implementing aid prior to the Commission's decision — Aid consisting in the partial reimbursement of energy tax solely to businesses manufacturing goods — Effects of the Commission's subsequent decision declaring the aid compatible with the common market

Operative part of the judgment

| 1. | The last sentence of Article 88(3) EC must be interpreted as meaning that it is for the national courts to safeguard the rights of individuals against possible disregard, by the national authorities, of the prohibition on putting aid into effect before the Commission of the European Communities has adopted a decision authorising that aid. In doing so, the national court must take the Community interest fully into consideration and must not adopt a measure which would have the sole effect of extending the circle of recipients of the aid. |
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1.

The last sentence of Article 88(3) EC must be interpreted as meaning that it is for the national courts to safeguard the rights of individuals against possible disregard, by the national authorities, of the prohibition on putting aid into effect before the Commission of the European Communities has adopted a decision authorising that aid. In doing so, the national court must take the Community interest fully into consideration and must not adopt a measure which would have the sole effect of extending the circle of recipients of the aid.

| 2. | Since a decision of the Commission of the European Communities declaring aid that has not been notified compatible with the common market does not have the effect of regularising ex post facto implementing measures which, at the time of their adoption, were invalid because they had been taken in disregard of the prohibition referred to in the last sentence of Article 88(3) EC, it is of little consequence whether an application is made before or after adoption of the decision declaring the aid compatible with the common market, since that application relates to the unlawful situation resulting from the lack of notification. |
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2.

Since a decision of the Commission of the European Communities declaring aid that has not been notified compatible with the common market does not have the effect of regularising ex post facto implementing measures which, at the time of their adoption, were invalid because they had been taken in disregard of the prohibition referred to in the last sentence of Article 88(3) EC, it is of little consequence whether an application is made before or after adoption of the decision declaring the aid compatible with the common market, since that application relates to the unlawful situation resulting from the lack of notification.

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(1)  OJ C 273, 06.11.2004.

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