62022CJ0700_RES
Case C‑700/22
RegioJet a.s.andSTUDENT AGENCY k.s.
v
České dráhy a.s._Správa železnic, státní organizaceandČeská republika, Ministerstvo dopravy
(Request for a preliminary ruling from the Nejvyšší soud)
Judgment of the Court (Fourth Chamber) of 7 December 2023
(Reference for a preliminary ruling – Regulation (EU) 2015/1589 – Existing aid and new aid – Aid granted in disregard of the procedural rules laid down in Article 108(3) TFEU – Expiry of the limitation period provided for in Article 17 of Regulation (EU) 2015/1589 – Obligation on the national court to order the recovery of the aid)
Aid granted by a Member State – Recovery of unlawful aid – Aid granted in breach of the procedural rules laid down in Article 108 TFEU – Expiry of the 10-year limitation period prescribed by Article 17 of Regulation 2015/1589 – No effect on the national court’s power to order repayment of the aid
(Art. 108(3) TFEU, Council Regulation 2015/1589, Art. 17)
(see paragraphs 13-21)
Résumé
On 26 June 2008, České dráhy a.s., a railway undertaking established in the Czech Republic, concluded a contract with the National Railway Administration, under which the former transferred part of its undertaking to the latter.
RegioJet a.s. and STUDENT AGENCY k.s., competitors of České dráhy, claim that the price obtained by the latter in the context of that transaction constitutes State aid within the meaning of Article 107(1) TFEU and that it is unlawful since it was neither notified to, nor authorised by, the European Commission, in accordance with Article 108(3) TFEU.
The dispute which arose before the Czech courts on the subject was brought before the Nejvyšší soud (Supreme Court, Czech Republic).
That dispute raises, in particular, the question of whether the expiry of the 10-year limitation period laid down in Article 17(1) of Regulation 2015/1589, (
1
) as a result of which aid which has been put into effect unlawfully becomes existing aid, prevents the national court hearing an application for recovery of unlawful aid from ordering the repayment of such aid by the recipient undertaking. Asked on this point by the Czech Supreme Court, the Court of Justice answers the question in the negative.
Findings of the Court
First, the Court recalls that the national courts and the Commission fulfil complementary and separate roles in the enforcement of the Treaty State aid rules. Whilst assessment of the compatibility of aid measures with the internal market falls within the exclusive competence of the Commission, subject to review by the EU Courts, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aid to the Commission pursuant to Article 108(3) TFEU is infringed.
In respect of the effect of the expiry of the 10-year time limit provided for in Article 17(1) of Regulation 2015/1589 as regards national procedures for the recovery of unlawful aid, the Court notes, next, that that regulation does not contain any provision relating to the powers and obligations of the national courts, which continue to be governed by the provisions of the Treaty. Thus, it is only the powers of the Commission to recover State aid that are referred to in Article 17(1) of Regulation 2015/1589.
In those circumstances, where there is no EU legislation on the subject, the unlawful aid must be recovered by the national authorities in accordance with the rules for implementation laid down by the applicable national law. In that context, the limitation rules that might be applicable are, therefore, those of national law, subject to the principles of effectiveness and equivalence.
Last, the Court states that the recipient undertaking, České dráhy, cannot base an argument on the fact that the national courts do not have the power to order the repayment of existing aid which falls under Article 108(1) TFEU. Although, under Article 1(b)(iv) and Article 17(3) of Regulation 2015/1589, aid which has been put into effect in breach of Article 108(3) TFEU becomes existing aid on the expiry of the limitation period laid down in Article 17(1) of that regulation, the fact remains that that provision does not have the effect of retroactively regularising State aid vitiated by illegality merely because it becomes existing aid.
In the light of the foregoing, the Court finds that Article 108(3) TFEU must be interpreted as meaning that national courts may order the repayment of State aid granted in breach of the obligation of prior notification laid down in that provision, even though the limitation period laid down in Article 17(1) of Regulation 2015/1589 has expired in respect of that aid, such that that aid must be regarded as existing aid.
(
1
)	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 (OJ 2015 L 248, p. 9).