Judgment — ECLI:EU:C:2008:747
Date: 2008-12-18
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Direct effect of the final sentence of Article 108(3) TFEU and role of national courts
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment State aid – Planned aid – Grant of aid in breach of the prohibition laid down in Article 88(3) EC – Later Commission decision declaring the aid compatible with the common market (Art. 88(3) EC) Where planned State aid was properly notified to the Commission and was not put into effect prior to the Commission’s decision, such aid can be put into effect as from the moment at which the decision is adopted, including, where relevant, in respect of a period predating the decision which is covered by the measure that has been declared compatible. Where aid has been granted to a recipient in disregard of the last sentence of Article 88(3) EC, the national court may be required, upon application by another operator and even after the Commission has adopted a positive decision, to rule on the validity of the implementing measures and the recovery of the financial support granted. In such a case, although Community law requires the national court to order the measures appropriate effectively to remedy the consequences of the unlawfulness, it does not, even in the absence of exceptional circumstances, impose an obligation of full recovery of the unlawful aid. Pursuant to Community law, the national court must order the aid recipient to pay interest in respect of the period of unlawfulness. Within the framework of its domestic law, it may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State’s right to re-implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid. Therefore, in a situation where the unlawful putting into effect of aid is followed by a positive Commission decision, Community law does not preclude the recipient from, on the one hand, demanding the disbursement of aid payable for the future and, on the other hand, keeping aid received that was granted prior to the positive decision, subject always to the consequences arising from unlawfulness of aid disbursed prematurely. The criterion that determines whether aid can be disbursed to a recipient in relation to a period predating a positive decision, or whether that recipient can keep aid already disbursed is therefore the finding, by the Commission, that the aid is compatible with the common market. Thus, the prohibition on putting State aid into effect laid down in the last sentence of Article 88(3) EC does not require a national court to dismiss an action brought by an aid recipient concerning the amount of that aid allegedly due in respect of a period predating a decision of the Commission finding that aid to be compatible with the common market. (see paras 26-31, 39, operative part)