As regards aid implemented in Bulgaria before it acceded to the European Union, Title 2 of Annex V to the 2005 Act of Accession provides for a monitoring mechanism. That mechanism aims inter alia to limit the range of aid measures which could be regarded as ‘existing aid’ at the time of accession for the purposes of Article 88(1) EC. Under that mechanism, measures implemented before accession but which, firstly, are still applicable post-accession and, secondly, satisfy the cumulative requirements of Article 87(1) EC on the date of accession, are subject to the specific rules laid down in Annex V to the Act of Accession, either as existing aid for the purposes of Article 88(1) EC when it comes within one of the three categories referred to in that annex, or as new aid on the date of accession for the purposes of application of Article 88(3) EC where it does not come within one of those three categories.

It follows that, in order to be capable of falling under the specific rules in Annex V to the Act of Accession, measures of State support adopted before the date of accession must, in particular, still be ‘applicable’ for the purposes of that annex as from the date of accession. In that light, the expression ‘still applicable’ in Annex V to the Act of Accession must be construed as relating, essentially, to measures implemented before accession to the European Union and which, following accession, remain such as to give rise to expenditure by the Member State concerned or an increase in its financial liability, or to decrease that Member State’s budgetary revenues.

In the case that the implementation of the public aid at issue of the public aid was completed before the Republic of Bulgaria’s accession to the European Union, that aid was accordingly not, following accession, such as to give rise to expenditure or increased financial liability for the Bulgarian State bodies, or to decrease the Republic of Bulgaria’s budgetary revenues. In those circumstances, that public aid cannot be regarded as ‘applicable’ post-accession for the purposes of Annex V to the Act of Accession. Consequently, those measures cannot be considered to be either ‘existing aid’ or ‘new aid upon accession’ for the purposes of that annex.

By contrast, proceedings to recover public aid granted to a company before the Republic of Bulgaria’s accession to the European Union, must, in the event of non-compliance with the conditions laid down in Article 9(4) of Protocol No 2 to the Europe Agreement establishing an association, under which Bulgaria was authorised to grant public aid for the restructuring of its steel sector, subject to the condition, inter alia, that the aid lead to the viability of the recipient undertakings under normal market conditions by the end of the restructuring period, be based on Article 3 of the Additional Protocol. In that context, the competent national authorities may, pursuant to the third paragraph of Article 3, adopt a decision to recover public aid which does not satisfy those conditions. A decision adopted by the European Commission on the basis of the second paragraph of Article 3 of the Additional Protocol does not constitute a necessary prerequisite for the recovery of such aid by those authorities.

(see paras 40, 51-53, 55, 58-60, 71, operative part)