Dimosia Epicheirisi Ilektrismou AE (DEI) v European Commission.
Date: 2016-10-26
24


It follows from the settled case-law of the Court, in that respect, that an appellant who is likely to have to refund a sum pursuant to the judgment of the General Court must be considered to be directly affected by that judgment (see to that effect, in particular, judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 46 to 58; and of 2 October 2003, International Power and Others v NALOO, C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P, EU:C:2003:534, paragraphs 52 and 53).
30


DEI and the Commission argue that, after having recalled, in paragraph 53 of the judgment under appeal, the settled case-law of the Court according to which the extension of existing aid creates new aid distinct from the aid that was extended and the amendment of the duration of existing aid must also be regarded as new aid (judgment of 4 December 2013, Commission v Council, C‑121/10, EU:C:2013:784, paragraph 59 and case-law cited, and judgment of 4 December 2013, Commission v Council, C‑111/10, EU:C:2013:785, paragraph 58), the General Court attempted, in paragraph 54 of the judgment under appeal, to temper that case-law by interpreting the judgments of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311); and of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), as meaning that it is only if the aid scheme is substantially amended that it must be considered to be new aid.
34


DEI and the Commission consider that the concept of ‘existing aid’ must therefore be interpreted restrictively in order not to prejudice the obligation to notify and suspend laid down in Article 108(3) TFEU, which the Court has moreover already acknowledged in the judgments of 5 October 1994, Italy v Commission (C‑47/91, EU:C:1994:358, paragraphs 24 to 26); and of 21 March 2002, Spain v Commission (C‑36/00, EU:C:2002:196, paragraph 24).
45


As a preliminary point, it must be stressed that, in the context of the State aid control system, introduced by Articles 107 and 108 TFEU, the procedure differs according to whether the aid is existing or new. Whereas existing aid may, in accordance with Article 108(1) TFEU, be lawfully implemented so long as the Commission has made no finding of incompatibility, Article 108(3) TFEU provides that plans to grant or alter existing aid must be notified, in due time, to the Commission and may not be implemented until the procedure has led to a final decision (see, to that effect, judgments of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 36 and case-law cited; and of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 35).
48


Furthermore, it follows from settled case-law that the concept of ‘State aid’ must be applied to an objective situation, which falls to be appraised on the date on which the Commission takes its decision (see, to that effect, judgments of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 16, of 11 September 2003, Belgium v Commission, C‑197/99 P, EU:C:2003:444, paragraph 86, as well as of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 144).
50


In those circumstances, and as held by the Court in the judgments of 4 December 2013, Commission v Council (C‑121/10, EU:C:2013:784, paragraph 59) and of 4 December 2013, Commission v Council (C‑111/10, EU:C:2013:785, paragraph 58), extension of the duration of existing aid must be considered to be an alteration of existing aid and therefore, in accordance with Article 1(c) of Regulation No 659/1999, constitutes new aid.
53


DEI and the Commission submit that, in paragraph 54 of the judgment under appeal, the General Court misinterpreted the judgments of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311), and of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), in order to qualify the case-law cited in paragraph 53 of the judgment under appeal, namely, the judgments of 4 December 2013, Commission v Council (C‑121/10, EU:C:2013:784, paragraph 59), and Commission v Council (C‑111/10, EU:C:2013:785, paragraph 58).
57


It follows that, as DEI argues, the case-law settled by the judgments of 4 December 2013, Commission v Council (C‑121/10, EU:C:2013:784, paragraph 59); and of 4 December 2013, Commission v Council (C‑111/10, EU:C:2013:785, paragraph 58), according to which extension of the existing aid scheme creates new aid, follows the same logic as the judgments of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311); and of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291). It must, moreover, be emphasised that, in those judgments of 4 December 2013, the Court expressly referred to paragraphs 46 and 47 of the latter judgment.
60


In the light of the aforementioned developments as a whole, it must be noted that, in paragraphs 54 to 56 of the judgment under appeal, the General Court misinterpreted and misapplied the case-law of the Court established by the judgments of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311), of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291), and confirmed by the judgments of 4 December 2013, Commission v Council (C‑121/10, EU:C:2013:784, paragraph 59), and of 4 December 2013, Commission v Council (C‑111/10, EU:C:2013:785, paragraph 58), and that, by ruling, in paragraph 57 of the judgment under appeal, that the first order for interim measures was not to be regarded as the grant or alteration of aid, as provided for in Article 108(3) TFEU, the General Court erred in law.
64


In that respect, DEI and the Commission state that, if, according to the settled case-law of the Court, an omission attributed to a Member State may result in the emergence of State aid (judgment of 19 mars 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 100 to 103), such would, a fortiori, be the case of a measure taken by an organ of the State, even when it is not a legislative measure.
89


According to the Commission, the opposite conclusion would amount to interpreting the concept of aid subjectively, depending on the body that adopts the measure introducing the aid, and would therefore be contrary to the Court’s case-law and, in particular, the judgment of 8 December 2011, France Télécom v Commission (C‑81/10 P, EU:C:2011:811, paragraph 17 and case-law cited), in which it was held that the concept of State aid has a legal character and must be interpreted on the basis of objective factors and according to the effects of that aid.
90


The Commission adds that DEI’s argument that it is for the national court, in the context of interlocutory proceedings, to notify the Commission and to subject to its preventive review any new measure granting new aid or altering existing aid is borne out by the judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraphs 59 to 63), from which it is apparent that exclusive competence of the Commission and the primacy of EU law preclude the national court from applying a national measure where its application would be an obstacle to the recovery of the State aid.
95


It should be noted, first of all, that, in accordance with settled case-law, implementation of the State aid control system is a matter, first, for the Commission and, second, for the national courts, each of which fulfil complementary and separate roles (judgments of 9 August 1994, Namur-Les assurances du crédit, C‑44/93, EU:C:1994:311, paragraph 14; and of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 27 and case-law cited, as well as of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 36).
96


National courts do not have jurisdiction to rule on a State aid’s compatibility with the internal market, that supervision falling within the exclusive competence of the Commission (see, to that effect, judgments of 8 December 2011, Residex Capital IV, C‑275/10, EU:C:2011:814, paragraph 27, of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 38 and case-law cited, and of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 37).
97


By contrast, it is for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals when the obligation to give prior notice to the Commission under Article 108(3) TFEU has been infringed (judgments of 8 December 2011, Residex Capital IV, C‑275/10, EU:C:2011:814, paragraph 27 and case-law cited, of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 39, as well as 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28).
98


For this purpose, proceedings concerning State aid may be brought before national courts, requiring them to interpret and apply the concept of ‘State aid’ in Article 107(1) TFEU, in particular in order to determine whether a measure introduced without observance of the preliminary examination procedure provided for in Article 108(3) EC ought to have been subject to this procedure (judgments of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraph 50 and case-law cited, as well as of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 38).
99


If the national courts reach the conclusion that the measure at issue should have in fact been notified to the Commission, they must ascertain whether the Member State concerned has fulfilled that obligation and, if that is not the case, declare that measure unlawful (judgment of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 68).
100


It is for those courts to draw all the necessary inferences from the infringement of Article 108(3) TFEU, in accordance with domestic law, with regard both to the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision (judgment of 8 December 2011, Residex Capital IV, C‑275/10, EU:C:2011:814, paragraph 29 and case-law cited).
101


National courts are, in particular, competent to adopt interim measures in order to prevent the distortion of competition stemming from the grant of an aid in contravention of the standstill obligation provided for in Article 108(3) TFEU (see judgments of 21 November 1991, Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon, C‑354/90, EU:C:1991:440, paragraph 11, of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraphs 39, 40 and 53, and of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 34). Thus, in accordance with paragraph 58 of the Commission’s Notice on the enforcement of State aid law by national courts (OJ 2009 C 85, p. 1), where there is a risk that the payment of unlawful aid will be made during the course of national court proceedings, the court may find it necessary to issue an interim order preventing the illegal disbursement until the substance of the matter is resolved.
105


It must be borne in mind that the application of the EU State aid rules is based on a duty of sincere cooperation between the national courts, on the one hand, and the Commission and the European Union courts, on the other, in the context of which each acts on the basis of the role assigned to it by the FEU Treaty. In the context of that cooperation, national courts must take all the measures, whether general or specific, necessary to ensure fulfilment of the obligations under EU law and must refrain from those that may jeopardise the attainment of the objectives of the Treaty, as follows from Article 4(3) TEU. Accordingly, national courts must, in particular, refrain from taking decisions that conflict with a decision of the Commission (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 41).