Opinion of the Advocate General — ECLI:EU:C:2013:442
Date: 2013-06-27
Language of the case: German
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 21 November 2013 1. Questions referred for a preliminary ruling — Admissibility — Conditions — Questions submitted in a context which enables a useful answer (Art. 267 TFEU) 2. State aid — Respective powers of the Commission and the national courts — Role of the national courts — Protection of the rights of individuals in the event of an infringement of the obligation to give prior notification — Obligation of national courts to draw all the appropriate conclusions from that infringement in accordance with national law (Art. 108(2) and (3) TFEU) 3. State aid — Respective powers of the Commission and the national courts — Role of the national courts — Commission decision to initiate the formal investigation procedure in respect of aid — Obligation of national courts to draw all the appropriate conclusions from an infringement of the obligation to suspend the measures under consideration — Suspension of the implementation of the measure in question and recovery of payments already made — Grant of provisional measures — Request for clarification, by the national court, to the Commission — Question referred for a preliminary ruling to the Court (Art. 4(3) TEU; Arts 108(2) and (3) TFEU and 267, second and third para., TFEU) 1. See the text of the decision. (see para. 22) 2. See the text of the decision. (see paras 27-30) 3. The initiation by the Commission of the formal examination procedure under Article 108(2) TFEU cannot release national courts from their duty to safeguard the rights of individuals faced with a possible breach of Article 108(3) TFEU. However, the scope of that obligation may vary, depending on whether or not the Commission has initiated the formal examination procedure with regard to the measure at issue in the proceedings before the national court. In a situation where the Commission has not yet initiated the formal examination procedure, the national courts, seised of a request that they should draw the appropriate conclusions from a possible infringement of the last sentence of Article 108(3) TFEU, may have cause to interpret and apply the concept of aid with a view to determining whether those measures should have been notified to the Commission. In a situation where the Commission has already initiated the formal examination procedure under Article 108(2) TFEU with regard to a measure which has not been notified and is being implemented, the effectiveness of Article 108(3) TFEU and the obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Courts of the European Union, on the other, require a national court hearing an application for the cessation of the implementation of that measure and the recovery of payments already made to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure. To that end, the national court may decide to suspend the implementation of the measure in question and order the recovery of payments already made. It may also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s decision to initiate the formal examination procedure. Where the national court entertains doubts as to whether the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal examination procedure, it may seek clarification from the Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, it may or must refer a question to the Court for a preliminary ruling. (see paras 32-34, 38, 41-44, operative part)