Judgment — ECLI:EU:T:2018:890
Date: 2018-12-07
Language of the case: French
Court formation: Third Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Belgium

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 7 December 2018 1. Action for annulment — Actions of the Member States — Action against a Commission decision finding aid to be incompatible with the internal market — Admissibility not conditional upon establishing a legal interest in bringing proceedings — Subject matter of the dispute having to continue to exist until the final decision (Art. 263 TFEU) 2. Action for annulment — Actions of the Member States — Action against a Commission decision finding aid to be incompatible with the internal market — Annulment of the aid measure by a national court in the course of the proceedings — Lack of certainty as to whether the measure can continue to produce legal effects — Action retaining its purpose (Art. 4(3) TEU; Art. 263 TFEU) 3. Aid granted by the Member States — Recovery of unlawful aid — Restoration of the prior situation — Scope (Art. 108(2) TFEU) 1. Although the Member States are not required to establish that they have an interest in bringing proceedings against the provisions the annulment of which is sought by them, the fact remains that, even when proceedings are brought before it by a Member State, the European Union judicature must find that there is no need to adjudicate on the action where the annulment sought is incapable of producing legal effects. (see para. 57) 2. While it is true that an action for annulment brought against an act withdrawn by the body which adopted it in the course of proceedings becomes devoid of purpose, an action brought against an act vitiated by unlawfulness still has a purpose, if that illegality is liable to recur in the future in circumstances independent from the case in question. In that connection, as regards an action for annulment brought by a Member State against a provision of a Commission decision on State aid prohibiting the Member State from implementing an unlawful aid measure for beneficiaries, the fact that that measure has been annulled by a national court in the course of the proceedings does not deprive any annulment of that provision of any legal effect. In the first place, in so far as the provision at issue has not been withdrawn and, therefore, has not disappeared with retroactive effect, it follows that, if the European Union judicature were to find that the dispute had become devoid of purpose and that there is no longer any need to adjudicate on the action because the annulment of that provision would have no legal effects, that provision would nevertheless remain part of the EU legal order. In the second place, the implementation in good faith by the Member States of the decisions adopted by the Commission in relation to State aid constitutes implementation of the principle of sincere cooperation laid down in Article 4(3) TEU and assumes that the Member States will make the necessary efforts to overcome any difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid. Thus it follows from the principle of sincere cooperation that that Member State should itself refrain from any conduct which may constitute a circumvention of the prohibition laid down in the contested provision in the event that that provision were to remain in force. It follows that the annulment of that provision, if the action were to prove to be well founded, would not be devoid of legal effects. Finally, to the extent that, in order to justify the legality of the contested provision, the Commission adopts a general and abstract position, the justifications for which are independent from the circumstances of the case, it follows that, if the European Union judicature were to come to the conclusion that the requirement laid down therein is unlawful, there would be a need to adjudicate on the dispute in question to prevent similar unlawfulness from recurring in the future. (see paras 58, 59, 63, 64) 3. The logical consequence of a finding that State aid is unlawful is to remove it by means of recovery in order to restore the situation previously obtaining. The main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords. In this way, by repaying the aid, the beneficiary forfeits the advantage which it had over its competitors on the market, and the situation prior to the payment of the aid is restored. In that connection, it is true that it cannot be ruled out that the disappearance of the measure by which State aid is granted may constitute, as a general rule, the most appropriate means of neutralising the competitive advantage granted. However, in those cases in which the competitive advantage identified as State aid benefits a third party as compared with the direct beneficiaries of the measure, the disappearance of the measure itself can be justified only where that appears to be necessary in order to restore the competitive situation which would have prevailed if the State aid from which that third party benefited had not been granted. (see paras 71, 72, 94)