Judgment — ECLI:EU:C:2015:742
Date: 2015-11-11
Language of the case: German
Court formation: Second Chamber
Subject matter: State aids;Competition;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 11 November 2015 1. State aid — Respective powers of the Commission and the national courts — Role of the national courts — Safeguarding of the rights of individuals where an aid scheme is implemented before the Commission decision — Duty on national courts, in accordance with national law, to draw all the consequences of any infringement of EU law — Possibility of suspending execution of the measure at issue, of requiring the recovery of amounts already paid and of ordering provisional measures — Grant of provisional measures (Art. 4(3) TEU; Art. 108(2) and (3) TFEU) 2. State aid — Aid granted in disregard of the procedural rules of Article 108(3) TFEU — Rule of national law seeking to enshrine the principle of the force of res judicata preventing the national court from drawing all the consequences of the infringement of Article 108(3) TFEU — Obligations and powers of the national courts — Interpretation of the national rules in conformity with EU law — Scope (Art. 4(3) TEU; Art. 108(2) and (3) TFEU) 3. Member States — Obligations — Res judicata — 85929 / Principles of equivalence and effectiveness — National court prevented from drawing the consequences of an infringement of EU law because of a definitive court decision given in a dispute concerning a different subject-matter — Incompatibility with the principle of effectiveness (Art. 4(3) TEU; Art. 108(2) and (3) TFEU) 1. See the text of the decision. (see paras 18-26) 2. The principle that national law must be interpreted in conformity with EU law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it. Where a national court finds that contracts concluded between a public entity and a private undertaking constitute State aid within the meaning of Article 107 TFEU, which has been implemented in breach of the third sentence of Article 108(3) TFEU, but considers itself prevented from satisfying its obligation to draw all the consequences from that breach because of a judgment of a national court confirming that the contracts at issue remained in force is res judicata, without it having examined their possible categorisation as State aid, that court must examine the possibility of ordering a measure such as the temporary suspension of the contracts at issue until the adoption of the Commission decision closing the procedure, which would enable that court to satisfy its obligations under the third sentence of Article 108(3) TFEU without actually ruling on the validity of the contracts at issue.. Furthermore, judgments are able to become res judicata only in so far as a ruling has been given on the complaint made in the action or on a counterclaim. Accordingly, it is for the referring court to ascertain whether such a limitation, expressly set out in national law, does not authorise it to interpret that provision as meaning that, when a breach of the third sentence of Article 108(3) TFEU is claimed, the force of res judicata extends only to the legal claims on which the court has ruled and therefore does not preclude a court from ruling, in a later dispute, on points of law on which there is no ruling in that definitive decision. In fact, a temporary suspension of the contracts at issue or an interpretation of national law in such a way as to contribute to the implementation of EU law would not have the effect of calling into question the legal finality definitively attaching to the ruling. (see paras 27, 34-37) 3. In the absence of EU legislation in this area, the rules for giving effect to the principle of res judicata are a matter for the domestic legal order of the Member States by virtue of the principle whereby the Member States enjoy procedural autonomy. However, such procedural rules must not be less favourable than those governing similar domestic situations (principle of equivalence) and must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness). As regards, in particular, the principle of effectiveness, where an interpretation of national law can have the consequence that effects are attributed to the decision of a national court which frustrate the application of EU law, in that they make it impossible for the national courts to satisfy their obligation to ensure compliance with the third sentence of Article 108(3) TFEU and it results therefrom that both the State authorities and the recipients of State aid could circumvent the prohibition set out in that provision by obtaining, without invoking EU law on State aid, a declaratory judgment the effect of which permits them, definitively, to continue to implement the aid in question over a number of years, it must be concluded that a national rule which prevents the national court from drawing all the consequences of a breach of the third sentence of Article 108(3) TFEU because of a decision of a national court which is res judicata, given in a dispute which does not have the same subject-matter and which did not concern the State aid characteristics of the contracts at issue must be regarded as being incompatible with the principle of effectiveness. Such a significant obstacle to the effective application of EU law and, in particular, a principle as fundamental as that of the control of State aid cannot be justified by the principle of legal certainty. Accordingly, in such circumstances, EU law precludes the application of a rule of national law enshrining the principle of res judicata from preventing a national court which has held that contracts concluded between a public authority and a private undertaking, forming the subject-matter of the dispute before it constitute State aid, within the meaning of Article 107(1) TFEU, implemented in breach of the third sentence of Article 108(3) TFEU, from drawing all the consequences of that breach because of a national judicial decision which has become definitive, which court, without examining whether those contracts constitute State aid, has held that the contracts remain in force. (see paras 40, 42, 43, 45, 46, operative part)