Judgment;Abstract — ECLI:EU:C:2023:960
Date: 2023-12-07
Language of the case: Czech
Court formation: Fourth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Czechia

Translation C-700/22 – 1 
Case C-700/22 
Request for a preliminary ruling  
Date lodged:  
15 November 2022 
Referring court:  
Nejvyšší soud (Czech Republic) 
Date of the decision to refer:  
26 September 2022 
Applicants:  
RegioJet a. s. 
STUDENT AGENCY k.s. 
Defendants:  
České dráhy, a.s. 
Správa železnic, státní organizace 
Česká republika, Ministerstvo dopravy 
  
[…] O R D E R  
Nejvyšší soud (the Supreme Court, Czech Republic) has ruled […] in the case of 
the applicants a) RegioJet a.s., […] b) STUDENT AGENCY k.s., […] against 
the defendants 1) České dráhy, a.s., (Czech Railways) […] 2) Správa železnic, 
státní organizace, (Railway Administration, state organisation) […] 3) Česká 
republika – Ministerstvo dopravy, (the Czech Republic – the Ministry of 
Transport) […] concerning the recovery of unlawful public aid and concerning 
protection against unfair competition, conducted before the Městský soud v Praze 
(City Court, Prague) under file no 1 Cm 6/2015, concerning the appeal on a point 
of law of the applicants against the judgment of the Vrchní Soud v Praze (High 
Court in Prague) of 23 September 2020, ref. no 3 Cmo 10/2019-463, as amended 
by a corrective order dated 3 December 2020, ref. no 3 Cmo 107/2019-501, and 
concerning the appeal on a point of law of defendant 1) against that corrective 
order, as follows: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 9. 2022 – CASE C-700/22 
 
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I. […]  
II. The Supreme Court requests an answer from the Court of Justice of the 
European Union pursuant to Article 267 of the Treaty on the Functioning of the 
European Union to the following question referred for a preliminary ruling: 
Must the last sentence of Article 108(3) of the Treaty on the Functioning of the 
European Union be interpreted as meaning that a national court must, in 
proceedings initiated on the application of a third party (competitor), order the 
recipient to return aid provided in breach of that provision even though (as at the 
date of the court’s decision) the limitation period for the Commission’s powers 
pursuant to Article 17(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 
laying down detailed rules for the application of Article 108 of the Treaty on the 
Functioning of the European Union has expired, due to which the aid provided is 
deemed, pursuant to Article 1(b)(iv) and Article 17(3) of the Regulation, to 
constitute existing aid?  
G r o u n d s: 
I. 
Facts of the case and proceedings before courts of the Czech Republic thus 
far  
1. The present case concerns (inter alia) a dispute pertaining to the recovery of 
financial consideration that, as the applicants claim, constitutes unlawful public 
aid provided to defendant 1) by defendant 2) with the contribution of defendant 3). 
2. As competitors of defendant 1), the applicants claim that the payment of the 
purchase price pursuant to an agreement on the sale of a section of a corporation 
concluded on 26 June 2008 by and between defendant 1), as the seller, and 
defendant 2), as the purchaser, amounted to unlawful public aid was provided to 
defendant 1), as the purchase price agreed was overvalued by the amount claimed, 
and by the payment of the purchase price from public funds, defendant 1) sold 
assets which defendant 1) originally obtained as a contribution from the state for 
the purpose of operating a railway in the public interest.  
3. In its judgment of 6 February 2019, the court of first instance (City Court, 
Prague), […] dismissed the application. On the applicants’ appeal, the appellate 
court (High Court in Prague) upheld the judgment of the court of first instance on 
the merits of the case, by its judgment dated 23 September 2020, […]. 
4. In support of its decision, the appellate court stated that the Commission had 
not conducted any investigation concerning the provision of this alleged unlawful 
aid, and hence, the limitation period pursuant to Article 17(1) of Council 
Regulation (EU) 2015/1589 had expired. According to the court of appeal, it is 
therefore necessary to view the payment of the said purchase price, even if it were 
public aid, as existing public aid, and consequently the court cannot order its 
REGIOJET AND STUDENT AGENCY 
 
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recovery pursuant to Article 108(3) of the Treaty on the Functioning of the 
European Union. 
5. The applicants challenged the judgment of the court of appeal by an appeal 
on a point of law, claiming an incorrect legal classification of the case as the 
grounds for the appeal on a point of law.  
6. In the proceedings concerning the appeal on a point of law, the court of 
appeal found that its decision in the matter depends on the resolution of the 
question whether the expiry of the limitation period on the Commission’s powers 
as concerns the recovery of aid prevents a national court from imposing, by means 
of direct application of Article 108(3) of the Treaty on the Functioning of the 
European Union, an obligation on the recipient to return any aid the provision of 
which was not notified to the Commission pursuant to that article.  
II. 
Applicable national law  
7. A decision in the case is based on the application of directly applicable 
provisions of EU law. National legislation shall not apply. 
III. 
Applicable European Union law  
8. Pursuant to Article 107(1) of the Treaty on the Functioning of the European 
Union, save as otherwise provided in the Treaties, any aid granted by a Member 
State or through State resources in any form whatsoever which distorts or 
threatens to distort competition by favouring certain undertakings or the 
production of certain goods is, in so far as it affects trade between Member States, 
incompatible with the internal market. 
9. Pursuant to Article 108(1) of the Treaty on the Functioning of the European 
Union, the Commission, in cooperation with Member States, is to keep under 
constant review all systems of aid existing in those States. It is to propose to the 
latter any appropriate measures required by the progressive development or by the 
functioning of the internal market. 
10. Pursuant to Article 108(2), first sentence of the Treaty on the Functioning of 
the European Union, if after giving notice to the parties concerned to submit their 
comments, the Commission finds that aid granted by a State or through State 
resources is not compatible with the internal market having regard to Article 107, 
or that such aid is being misused, it is to decide that the State concerned shall 
abolish or alter such aid within a period of time to be determined by the 
Commission. 
REQUEST FOR A PRELIMINARY RULING OF 26. 9. 2022 – CASE C-700/22 
 
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11. Pursuant to Article 108(3) of the Treaty on the Functioning of the European 
Union, the Commission is to be informed, in sufficient time to enable it to submit 
its comments, of any plans to grant or alter aid. If it considers that any such plan is 
not compatible with the internal market having regard to Article 107, it is without 
delay to initiate the procedure provided for in paragraph 2. The Member State 
concerned is not to put its proposed measures into effect until this procedure has 
resulted in a final decision. 
12. Pursuant to Article 1(b)(iv) of Council Regulation (EU) 2015/1589, for the 
purposes of this Regulation, ‘existing aid’ means aid which is deemed to be 
existing aid pursuant to Article 17 of that Regulation. 
13. Pursuant to Article 1(c) of Council Regulation (EU) 2015/1589, for the 
purposes of this Regulation, ‘new aid’ means all aid, that is to say, aid schemes 
and individual aid, which is not existing aid, including alterations to existing aid. 
14. Pursuant to Article 1(f) of Council Regulation (EU) 2015/1589, for the 
purposes of this Regulation, ‘unlawful aid’ means new aid put into effect in 
contravention of Article 108(3) TFEU. 
15. Pursuant to Article 17(1) and (3) of Council Regulation (EU) 2015/1589, 
powers of the Commission to recover aid shall be subject to a limitation period of 
10 years (paragraph 1). Any aid with regard to which the limitation period has 
expired shall be deemed to be existing aid (paragraph 3). 
IV. 
Grounds for the question referred  
16. To begin, it seems appropriate to state that the question referred pertains 
exclusively to the recipient’s obligation to return aid as such (i.e., not any other 
potential claims arising from unlawful provision of aid pursuant to Article 108(3) 
of the Treaty on the Functioning of the European Union, including, for example, 
claims from prematurely provided aid or damages). 
17. Furthermore, it seems appropriate to state that the present case does not deal 
with the question of the period in which the right to recover unlawfully granted 
aid is time-barred in proceedings before a national court on the basis of the direct 
effect of Article 108(3) of the Treaty on the Functioning of the European Union, 
but rather, whether a recipient is obliged to provide aid that is deemed existing aid 
pursuant to Article 1(b)(iv) in conjunction with Article 17(3) of Council 
Regulation (EU) 2015/1589 due to the expiry of the period stipulated therein, i.e., 
support to which Article 108(3) of the Treaty on the Functioning of the European 
Union does not (at least according to the actual wording of the provisions) apply 
(at least with respect to the future). 
18. The above provisions of EU law do not provide an answer that would 
exclude any room for reasonable doubt as to the question of the effect had by the 
REGIOJET AND STUDENT AGENCY 
 
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limitation of the Commission’s powers regarding the recovery of aid pursuant to 
Article 17(1) of Council Regulation (EU) 2015/1589 on the recipient’s obligation 
to return aid provided in violation of Article 108(3) of the Treaty on the 
Functioning of the European Union, which would (otherwise) be imposed on the 
recipient on the basis of the direct application of the provision or whether a 
national court is obliged to order compliance with that obligation [cf. Recital 25 of 
Council Regulation (EU) 2015/1589; cf. also, for example, judgments of the Court 
of Justice of 11 July 1996 in Case C-39/94, Syndicat français de l'Express 
international (SFEI) and Others v La Poste and Others, and of 8 December 2011 
in Case C-275/10, Residex Capital IV CV v Gemeente Rotterdam]. 
19. Recital 26 of Council Regulation (EU) 2015/1589 does state that, for reasons 
of legal certainty, it is appropriate to provide for a period of limitation of 10 years 
with regard to unlawful aid, after the expiry of which no recovery can be ordered. 
It is not, however, clear whether that restriction and its effect apply solely to the 
Commission’s decisions (pursuant to Article 16 of the Regulation) or whether 
certain effects of the provision can be manifest (also) in the decisions of a national 
court on the basis of the direct application of Article 108(3) of the Treaty on the 
Functioning of the European Union. 
20. Furthermore, Commission Notice on the enforcement of State aid rules by 
national courts (2021/C 305/01) states, on the one hand, that Council Regulation 
(EU) 2015/1589 does not contain any provision relating to the powers and 
obligations of national courts (paragraph 70), while on the other hand, the Notice 
emphasises that, when implementing State aid rules, the role of the national courts 
is limited to assessing whether an aid measure constitutes existing aid, and, in that 
case, there is no question of breach of Article 108(3) TFEU to be remedied by the 
national court(paragraph 69). 
21. According to the referring court, the provisions of EU law do not provide an 
unambiguous answer to the question at hand (or, more precisely, they do not 
constitute acte clair). 
22. The Court of Justice has expressed its views on the issue and consequences 
of the expiration of the limitation period for the Commission’s powers to recover 
aid pursuant to Article 17(1) of Council Regulation (EU) 2015/1589 [formerly 
pursuant to Article 15(1) of Council Regulation (EC) No 659/1999 of 22 March 
1999 laying down detailed rules for the application of Article 93 of the EC Treaty] 
several times. This, however, has taken place in connection with different factual 
circumstances or in an assessment of claims differing from those in the present 
case. 
23. In its judgment of 5 October 2006 in Case C-368/04, Transalpine Ölleitung 
in Österreich GmbH and Others v Finanzlandesdirektion für Tirol and Others, the 
Court of Justice formulated a general premiss according to which the regulation 
codifies and reinforces the Commission’s practice in reviewing State aid and does 
not contain any provision relating to the powers and obligations of the national 
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courts, which continue to be governed by the provisions of the Treaty as 
interpreted by the Court. 
24. Subsequently, in its judgment of 16 April 2015 in Case C-690/13, Trapeza 
Eurobank Ergasias AE v Agrotiki Trapeza tis Ellados AE (ATE), the Court of 
Justice specified that pursuant to Article 1(b) of Regulation 659/1999 aid may be 
classified as existing where it was granted after the entry into force of the Treaty 
in the Member State concerned, but after the expiry of the 10-year limitation 
period provided for in Article 15(3) of that regulation, and hence, in the case of 
the provision of such aid, the Member State would not be required to follow the 
preliminary examination procedure provided for in Article 88(3) EC. The Court of 
Justice inferred this in connection with an evaluation of aid in the form of a 
prerogative granted to a bank acting for the public benefit consisting of the 
possibility of a unilateral establishment of a pledge on the basis of a national law 
from 1929, or in evaluating the question of the applicability or non-applicability 
of that provision of national law. That is to say, this was not in relation to the 
obligation of a national court to impose on the recipient an obligation to return aid 
provided in financial form (or the payment of financial performance back to its 
provider) on the basis of an action filed by its competitor. 
25. In its judgment of 30 April 2002, in Joined Cases T 195/01 and T-207/01, 
Government of Gibraltar v Commission of the European Communities, the Court 
of First Instance of the European Community stated that the limitation period 
provided for in Article 15 of Regulation No 659/1999 does not in any way express 
a general principle whereby new aid is transformed into existing aid but merely 
precludes recovery of aid established more than 10 years before the Commission 
first intervened.  
26. However, the conclusion in that case was not reached in the context of an 
evaluation of the obligation of a national court to order the recipient to return 
financial support provided, on the basis of the direct application of Article 108(3) 
of the Treaty on the Functioning of the European Union (or Article 88(3) of the 
Treaty Establishing the European Community), but rather, in the context of a 
review of the Commission’s decision to launch formal investigation proceedings 
pursuant to Article 88(2) of the Treaty Establishing the European Community and 
pursuant to Regulation No 659/1999. 
27. The Court of Justice also expressed its opinion concerning the nature of the 
period specified in Article 17(1) of Council Regulation (EU) 2015/1589 [or in 
Article 15(1) of Council Regulation (EC) No 659/1999] in its judgments of 
5 March 2019 in Case C-349/17, Eesti Pagar AS v Ettevõtluse Arendamise 
Sihtasutus a Majandus- ja Kommunikatsiooniministeerium, and of 30 April 2020 
in Case C-627/18, Nelson Antunes da Cunha, Lda proti Instituto de 
Financiamento da Agricultura e Pescas IP (IFAP). It inferred that the limitation 
period provided for in that provision applies solely to powers of the Commission 
concerning the recovery of aid and cannot therefore be applied to proceedings 
concerning recovery of aid by competent national authorities. 
REGIOJET AND STUDENT AGENCY 
 
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28. Nevertheless, in these judgments the Court of Justice assessed the question 
of the importance of the limitation period provided for in that provision in terms 
of the possibility of the limitation of claims (otherwise possibly well-founded) 
brought in proceedings before a national court pursuant to Article 108(3) of the 
Treaty on the Functioning of the European Union [or in connection with a 
Commission decision pursuant to Article 16 of Council Regulation (EU) 
2015/1589]. In the present case, nevertheless, the decision of the referring court 
does not depend on an assessment of the legitimacy of an objection raised by 
defendant 1), as the recipient of aid against (otherwise possibly well-founded) 
claims arising from Article 108(3) of the Treaty on the Functioning of the 
European Union, but on an answer to the question of whether defendant 1), as the 
recipient of aid, is obliged to return even such unnotified aid which is, as a result 
of the objective expiry of the period provided for in Article 17(1) of Council 
Regulation (EU) 2015/1589, (still) deemed to constitute existing aid (albeit not 
lawful ex post facto). 
29. Outside of the scope of an assessment of the consequences of the limitation 
of the Commission’s powers pursuant to Article 17(1) of Council Regulation (EU) 
2015/1589, the conclusion formulated by the Court of Justice in its judgments of 
5 October 2006 in Case C-368/04 Transalpine Ölleitung in Österreich GmbH and 
Others v Finanzlandesdirektion für Tirol and Others, and of 12 February 2008 in 
Case C-199/06, Centre d’exportation du livre français (CELF), Ministre de la 
Culture et de la Communication v Société internationale de diffusion et d’édition 
(SIDE), also seems relevant. According to that conclusion, a Commission decision 
finding aid that was not notified compatible with the common market does not 
have the effect of regularising ex post facto the unlawful status of acts which are 
invalid because they were taken in disregard of the prohibition laid down by 
Article 108(3) of the Treaty on the Functioning of the European Union. At the 
same time, however, the Court of Justice inferred that the article does not give rise 
to the obligation of a national law to order the recipient of (prematurely) granted 
aid to return that aid where the Commission had already ruled on the compatibility 
of the aid. This does not prejudice the recipient’s obligation to pay interest in 
respect of the period of unlawfulness or the compensation for the damages caused 
by the unlawful nature of the aid provided. 
30. Similarly, in its judgment of 23 January 2019 in Case C-387/17, Presidenza 
del Consiglio dei Ministri proti Fallimento Traghetti del Mediterraneo SpA, the 
Court of Justice formulated a conclusion according to which the expiry of the 
limitation period provided for in Article 15(1) of Regulation No 659/1999 cannot 
have the effect of retroactively legalising State aid vitiated by illegality merely 
because it becomes existing aid within the meaning of Article 1(b)(iv) and, 
consequently, of depriving of any legal basis an action for damages brought 
against the Member State concerned by individuals and competitors affected by 
the grant of the unlawful aid.  
31. Nevertheless, the Court of Justice did not address the question of the effect 
of the expiry of that limitation period on the recipient’s obligation to return aid 
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provided (originally) in violation of Article 108(3) of the Treaty on the 
Functioning of the European Union on the basis of the direct application of the 
article. 
32. The referring court maintains that the provisions of EU legislation concerned 
in regard of the question referred do not constitute acte éclairé. 
33. It can thus be summarised that the nature of the question referred is whether 
the expiry (itself) of the limitation period to which the Commission’s powers are 
subject pursuant to Article 17(1) of Council Regulation (EU) 2015/1589 
(including during proceedings before a national court), due to which the aid 
provided is deemed existing aid pursuant to Article 1(b)(iv) and Article 17(3) of 
the Regulation, rules out the obligation of the national court to order the recipient 
to return (unnotified) aid as the result of the direct application of Article 108(3) of 
the Treaty on the Functioning of the European Union. 
34. In the opinion of the referring court, in answering this question, a conclusion 
that seems plausible (albeit not without any reasonable doubt) would be that, if the 
direct application of Article 108(3) of the Treaty on the Functioning of the 
European Union does not give rise to an obligation on a national court to order the 
recipient to return aid granted prematurely in a situation when the Commission 
has already decided about the compatibility of that aid, a fortiori the court cannot 
impose such an obligation on the basis of that article if the Commission does not 
issue (or cannot issue) such a decision due to the objective expiry of the limitation 
period itself. 
V. 
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