Transalpine Ölleitung in Österreich GmbH and Others v Finanzlandesdirektion für Tirol and Others.
Date: 2006-10-05
34. As a preliminary point, and to answer a question raised by the referring court in the body of its decision, it should be noted that, in so far as Regulation No 659/1999 contains rules of a procedural nature, they apply to all administrative procedures in the matter of State aid pending before the Commission at the time when Regulation No 659/1999 entered into force, namely on 16 April 1999 (Case C‑276/03 P Scott  v Commission  [2005] ECR I‑8437, confirming by implication the judgment in Case T‑366/00 Scott  v Commission  [2003] ECR II‑1763, paragraph 52).
35. Nevertheless, as is clear from the recital 2 in the preamble to Regulation No 659/1999 and its provisions, that 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 courts, which continue to be governed by the provisions of the Treaty as interpreted by the Court.
36. In that regard, firstly, it should be noted that implementation of the system for supervision of State aid, resulting from Article 88 EC and the case-law of the Court on the subject, is a matter, on the one hand, for the Commission and, on the other, for national courts.
37. It is common ground that, as regards the supervision of Member States’ compliance with their obligations under Articles 87 EC and 88 EC, the national courts and the Commission fulfil complementary and separate roles (see Case C‑39/94 SFEI and Others  [1996] ECR I‑3547, paragraph 41, and van Calster and Others , cited above, paragraph 74).
38. Whilst assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the Community 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 88(3) of the Treaty is infringed ( van Calster and Others , paragraph 75).
39. A national court may have cause to interpret the concept of aid contained in Article 87(1) of the Treaty in order to determine whether a State measure has been introduced in disregard of Article 88(3) (Case C‑345/02 Pearle and Others  [2004] ECR I‑7139, paragraph 31). Thus it is for that court to verify, inter alia, whether the measure at issue constitutes an advantage and whether it is selective, that is to say whether it favours certain undertakings or certain producers within the meaning of Article 87(1) EC.
40. Secondly, it must be pointed out that an aid measure within the meaning of Article 87(1) EC which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful (see Case C‑354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon  v French State [1991] ECR I-5505, paragraph 17, and Joined Cases C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04 Distribution Casino France and Others  [2005] ECR I‑9481, paragraph 30. See also the definition of unlawful aid in Article 1(f) of Regulation No 659/1999.
41. A Commission decision finding aid that was not notified compatible with the common market does not have the effect of regularising ex post facto implementing measures which were invalid because they were taken in disregard of the prohibition laid down by the last sentence of Article 88(3) EC, since otherwise the direct effect of that provision would be impaired and the interests of individuals, which are to be protected by national courts, would be disregarded. Any other interpretation would have the effect of according a favourable outcome to the non-observance of that provision by the Member State concerned and would deprive it of its effectiveness (see Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon v French State , paragraph 12, and v an Calster and Others , paragraph 63).
42. Indeed, as the Advocate General pointed out in paragraph 50 of his Opinion, if, for any particular aid plan, whether compatible with the common market or not, failure to comply with Article 88(3) EC carried no greater risk or penalty than compliance, the incentive for Member States to notify and await a decision on compatibility would be greatly diminished – as would, consequently, the scope of the Commission’s control.
45. In that regard, and since there is no Community legislation on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from Community law, provided, firstly, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, secondly, that they do not render impossible or excessively difficult in practice the exercise of rights conferred by the Community legal order (principle of effectiveness) (see Case C‑300/04 Eman and Sevinger  [2006] ECR I‑0000, paragraph 67, and Joined Cases C‑392/04 and C‑422/04 i‑21 Germany and Arcor  [2006] ECR I‑0000, paragraph 57).
46. Depending on the legal remedies provided for under domestic law, a national court may thus be seised of an application for interim relief such as the suspension of the measures at issue, in order to safeguard the interests of individuals and, in particular, to protect parties affected by the distortion of competition caused by the grant of the unlawful aid (see SFEI and Others , paragraph 52).
47. Furthermore, the Court has held that national courts must offer to individuals entitled to rely on disregard of the obligation of notification the certain prospect that all appropriate conclusions will be drawn, in accordance with national law, with regard to both the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision or possible interim measures ( Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon , paragraph 12, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraphs 26 and 27; van Calster and Others , paragraph 64; and Case C‑71/04 Xunta de Galicia  [2005] ECR I‑7419, paragraph 50).
48. When giving its decision, the national court must preserve the interests of individuals. Nevertheless, in doing so it must also take fully into consideration the interests of the Community (see, by analogy, Case C‑5/89 Commission  v Germany  [1990] ECR I‑3437, paragraph 19).
49. With regard to partial rebate of a tax constituting an unlawful aid measure because it was granted in breach of the obligation of notification, it would not be compatible with the interest of the Community to order that such a rebate be applied also in favour of other undertakings if such a decision would have the effect of extending the circle of recipients, thus leading to an increase in the effects of that aid instead of their elimination (see, to that effect, Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium  [2006] ECR I‑0000, paragraph 45).
51. In addition, it should be noted that, in the cases in the main proceedings, the applications for grant of the unlawful aid measure, namely the partial rebate on energy taxes, may be likened to applications for partial exemption from those taxes. As is clear from case-law, businesses liable to pay an obligatory contribution cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that contribution (see Case C‑390/98 Banks  [2001] ECR I-6117, paragraph 80; Joined Cases C‑430/99 and C‑431/99 Sea-Land Service and Nedlloyd Lijnen  [2002] ECR I‑5235, paragraph 47; Distribution Casino France and Others , paragraph 42, and Air Liquide Industries Belgium , paragraph 43).
56. Depending on what is possible under national law and the remedies available thereunder, the national court may thus, according to the case, be called upon to order recovery of unlawful aid from its recipients, even if that aid has subsequently been declared compatible with the common market by the Commission. In the same way, a national court may be required to rule on an application for compensation for the damage caused by reason of the unlawful nature of the aid.