Opinion of the Advocate General — ECLI:EU:C:2003:227
Date: 2003-04-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Belgium

SUMMARY — JOINED CASES C-261/01 AND C-262/01 
Summary of the Judgment 
1. State aid — Planned aid — Notification to the Commission — Extent of the 
obligation — Notification must include the method of financing an account of its 
impact on the permissibility of the aid 
(EC Treaty, Art. 93(3) (now Art. 88(3)) 
2. State aid — Planned aid — Prohibition of implementation before the Commission's 
final decision — Direct effect — Scope — Charges introduced to finance aid granted 
contrary to Community law — Obligation on national courts to order repayment 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
3. State aid — Planned aid — Grant of aid in breach of the prohibition laid down in 
Article 93(3) of the Treaty (now Article 88(3) EC) — Subsequent Commission 
decision declaring the aid compatible with the common market — Effect — Ex post 
facto régularisation of the national legal measures relating to the grant of the aid — 
None 
(EC Treaty, Art. 93(3) (now Art. 88(3) EC)) 
4. State aid — Respective powers of the Commission and of national courts — No 
power of the Commission to order repayment of non-notified aid 
(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93(3) (now Art. 88(3) 
EC)) 
1. The method by which an aid is 
financed may render the entire aid 
scheme incompatible with the common 
market. Therefore, the aid cannot be 
considered separately from the effects 
of its method of financing and con­
sideration of an aid measure by the 
Commission must necessarily also take 
into account the method of financing 
the aid in a case where that method 
forms an integral- part of the measure. 
In such a case, the notification of the 
aid provided for in Article 93(3) of the 
Treaty must also cover the method of 
financing, so that the Commission may 
consider it on the basis of all the facts. 
If this requirement is not satisfied, it is 
possible that the Commission may 
declare that an aid measure is com­
patible, when, if the Commission had 
been aware of its method of financing, 
it could not have been so declared. 
Accordingly, in order to ensure the 
effectiveness of the obligation to notify 
and the Commission's full and appro-
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VAN CALSTER AND OTHERS 
priate consideration of an aid, the 
Member State is required, in order to 
comply with that obligation, to notify 
not only the planned aid in the narrow 
sense, but also the method of financing 
the aid inasmuch as that method is an 
integral part of the planned measure. 
(see paras 49-51) 
2. Where an aid measure of which the 
method of financing is an integral part 
has been implemented in breach of the 
obligation to notify, national courts 
must, as part of their task of upholding 
the rights of the persons concerned in 
the event of any breach by the national 
authorities of the prohibition laid 
down in the last sentence of 
Article 93(3) of the Treaty (now the 
last sentence of Article 88(3) EC) 
which has direct effect, take all the 
consequential measures under national 
law as regards both the validity of 
decisions giving effect to the aid meas­
ures concerned and the recovery of the 
financial support granted and thus in 
principle order reimbursement of 
charges or contributions levied specifi­
cally for the purpose of financing that 
aid. 
(see paras 54, 64) 
3. The Commission's final decision 
declaring aid incompatible with the 
common market does not have the 
effect of regularising ex post facto 
implementing measures which were 
invalid, when taken, because they had 
been taken in breach of the prohibition 
laid down by the last sentence of 
Article 93(3) of the Treaty (now the 
last sentence of Article 88(3), since 
otherwise the direct effect of that 
prohibition would be impaired and 
the interests of individuals, which are 
to be protected by national courts, 
would be disregarded. Any other inter­
pretation would have the effect of 
according a favourable outcome to 
the non-observance of the last sentence 
of that provision by the Member State 
concerned and would deprive it of its 
effectiveness 
(see para. 63) 
4. In supervising the Member States' 
compliance with their obligations 
under Article 92 (now, after amend­
ment, Article 87 EC) and 93 of the 
Treaty, (now Article 88 EC) the 
national courts and the Commission 
fulfil complementary and separate 
roles. 
Whilst assessment of the compatibility 
of State aid with the common market 
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SUMMARY — JOINED CASES C-261/01 AND C-262/01 
falls within the exclusive competence 
of the Commission, subject to review 
by the Court, it is for the national 
courts to ensure that the rights of 
individuals are safeguarded where the 
obligation to give prior notification of 
State aids to the Commission pursuant 
to Article 93(3) of the Treaty is 
infringed. Unlike the national courts, 
the Commission cannot therefore order 
the return of a State aid on the sole 
ground that it was not notified in 
accordance with Article 93(3) of the 
Treaty 
(see paras 74-76) 
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