Opinion of the Advocate General — ECLI:EU:C:2015:699
Date: 2015-10-15
Language of the case: Greek
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Greece

Summary — Order of the Vice-President of the Court, 3 December 2014 1. Application for interim measures — Suspension of operation of a measure — Judgment of the General Court which is the subject of an appeal — Right to effective judicial protection — Application for suspension of operation of the contested decision which was challenged at first instance — Admissibility (Art. 278 TFEU) 2. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved (Arts 278 TFEU and 279 TFEU; Statute of the Court of Justice, Art. 60, first para.; Rules of Procedure of the Court of Justice, Art. 160(3)) 3. Application for interim measures — Suspension of operation of a measure — Judgment of the General Court which is the subject of an appeal — Suspension of operation of the decision which was unsuccessfully challenged before the General Court — Conditions — Prima facie case — Extent of the burden of proof on the applicant (Art. 278 TFEU) 4. State aid — Prohibition — Exceptions — Discretion of the Commission — Whether possible to adopt guidelines — Binding effect (Arts 107 TFEU and 108 TFEU) 5. State aid — Recovery of unlawful aid — Restoration of the prior situation — Breach of principle of proportionality — None (Art. 108 TFEU; Council Regulation No 659/1999, Art. 14(1)) 1. The fact that an application for interim measures made in connection with an appeal against a judgment of the General Court, which dismissed action for annulment of a Commission decision finding State aid to be incompatible with the internal market and ordering its recovery, seeks suspension of operation of that decision and thus goes beyond suspension of operation of the judgment under appeal does not make that application inadmissible. Given, first, that the judgment under appeal is, in so far as it dismisses the action in its entirety, comparable to a negative decision, in respect of which it cannot be envisaged that an application for suspension of operation, which would in no way alter the appellant’s situation, could be granted save in exceptional circumstances and, second, that the obligation to repay the unlawful aid stems from the decision challenged before the General Court, that application must for reasons connected with the right to effective judicial protection be declared admissible. (see paras 16, 17) 2. See the text of the decision. (see para. 19) 3. The requirement of a prima facie case is satisfied if, at the stage of the proceedings for interim relief, there is a major legal or factual disagreement whose resolution is not immediately obvious, so that the action is not prima facie without reasonable substance. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the Court, the judge hearing the application for interim relief must restrict himself to assessing ‘prima facie’ the merits of the grounds put forward in the main proceedings in order to ascertain whether the action has a sufficiently probable chance of success. As regards an application for interim measures made in connection with appeal proceedings against a judgment of the General Court dismissing an action for annulment brought against a Commission decision declaring State aid to be incompatible with the internal market and ordering its recovery, the fact that that application is for the grant of suspension of operation of the decision at issue, and not of the judgment under appeal, entails consequences for the assessment as to whether there is a prima facie case. However serious the pleas and arguments put forward by the appellant against the judgment under appeal may be, they cannot suffice to justify, prima facie, in law suspension of operation of the act in question before the General Court. In order to establish that the condition relating to a prima facie case is satisfied, the applicant must succeed in showing, in addition, that the pleas and arguments relied on against the legality of that act in the action for annulment are such as to justify, prima facie, the grant of the suspension of operation sought, despite the fact that a European Union court has already examined them and held them to be unfounded. (see paras 20-22, 24) 4. See the text of the decision. (see paras 36, 37) 5. See the text of the decision. (see para. 45)