Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen.
Date: 2015-11-11
18. As a preliminary point, it must be borne in mind that, in accordance with the settled case-law of the Court, Article 108(3) TFEU establishes a prior control of plans to grant new aid (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 25 and the case-law cited).
19. The aim of that system of prior control is therefore that only compatible aid may be implemented. In order to achieve that aim, the implementation of planned aid is to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 26 and the case-law cited).
20. The implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 27 and the case-law cited).
21. 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 Courts of the European Union, it is for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 28 and the case-law cited).
22. Proceedings concerning State aid may be commenced before national courts requiring those courts to interpret and apply the concept of aid contained in Article 107(1) TFEU, in particular in order to determine whether State aid introduced without observance of the preliminary examination procedure provided for in Article 108(3) TFEU ought to have been subject to this procedure (see, to that effect, judgment in Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon, C‑354/90, EU:C:1991:440, paragraphs 9 and 10 and the case-law cited).
23. The involvement of national courts is the result of the direct effect which the prohibition on implementation of planned aid laid down in the third sentence of Article 108(3) TFEU has been held to have. In this respect, the Court has stated that the immediate enforceability of the prohibition on implementation referred to in that provision extends to all aid which has been implemented without being notified (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 29 and the case-law cited).
24. National courts must offer to individuals the certain prospect that all the appropriate conclusions will be drawn from an infringement of the third sentence of Article 108(3) TFEU, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 30 and the case-law cited).
25. The objective of the national courts’ tasks is therefore to pronounce measures appropriate to remedy the unlawfulness of the implementation of the aid, in order that the aid does not remain at the free disposal of the recipient during the period remaining until the Commission makes its decision (judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 30 and the case-law cited).
26. To that end, when national courts hold that the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU, implemented in breach of the third sentence of Article 108(3) TFEU, they may decide to suspend the implementation of the measure in question and order the recovery of payments already made or to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s subsequent decision (see, by analogy, judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 43, and order in Flughafen Lübeck , C‑27/13, EU:C:2014:240, paragraph 26).
31. In that regard, it is appropriate to recall that it is for the national courts to interpret, as far as it is possible, the provisions of national law in such a way that they can be applied in a manner which contributes to the implementation of EU law (judgment in Lucchini , C‑119/05, EU:C:2007:434, paragraph 60).
32. It is true that this principle of interpreting national law in conformity with EU law has certain limitations. Thus the obligation on a national court to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem  (see to that effect, judgments in Impact , C‑268/06, EU:C:2008:223, paragraph 100, and Association de médiation sociale , C‑176/12, EU:C:2014:2, paragraph 39).
34. In that regard, it must be borne in mind that the principle that national law must be interpreted in conformity with EU law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that EU law is fully effective and to achieving an outcome consistent with the objective pursued by it (see, to that effect, judgment in Dominguez , C‑282/10, EU:C:2012:33, paragraph 27 and the case-law cited).
35. Thus, it is for the referring court to ascertain, on that basis, whether it can find such an interpretation, taking into consideration, in particular, firstly, the elements referred to in paragraphs 28 and 29 of the present judgment (see, by analogy, judgment in Dominguez , C‑282/10, EU:C:2012:33, paragraph 31) and, secondly, the case-law of the Court referred to in paragraph 26 of the present judgment, from which it is apparent that, in order to draw all the consequences of a breach of the third sentence of Article 108(3) TFEU, the national courts may, as necessary, order provisional measures. In the present case, accordingly, it is for the referring court to examine the possibility of ordering a measure such as the temporary suspension of the contracts at issue until the adoption of the Commission decision closing the procedure, which would enable that court to satisfy its obligations under the third sentence of Article 108(3) TFEU without actually ruling on the validity of the contracts at issue.
36. Furthermore, although the referring court took the view that the exceptions drawn from German civil procedural law to the principle of res judicata  did not apply in the case, it must be noted that, under Paragraph 322 of the ZPO, judgments are able to become res judicata  only in so far as a ruling has been given on the complaint made in the action or on a counterclaim. Accordingly, it is for the referring court to ascertain whether such a limitation, expressly set out in Paragraph 322(1) of the ZPO, does not authorise it to interpret that provision as meaning that, when a breach of the third sentence of Article 108(3) TFEU is claimed, the force of res judicata  extends only to the legal claims on which the court has ruled and therefore does not preclude a court from ruling, in a later dispute, on points of law on which there is no ruling in that definitive decision.
38. If such a measure or interpretation should, however, prove not to be possible, attention should be drawn to the importance, both in the legal order of the European Union and in national legal systems, of the principle of res judicata . In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that regard can no longer be called into question (see judgments in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 22, and Târșia , C‑69/14, EU:C:2015:662, paragraph 28).
39. Therefore, EU law does not always require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a breach of EU law by the decision at issue (see judgments in Kapferer , C‑234/04, EU:C:2006:178, paragraph 22, Fallimento Olimpiclub , C‑2/08, C:2009:506, paragraph 23, Commission  v Slovak Republic , C‑507/08, EU:C:2010:802, paragraph 60, Impresa Pizzarotti , C‑213/13, EU:C:2014:2067, paragraph 59, and Târșia , C‑69/14, EU:C:2015:662, paragraph 29).
40. In the absence of EU legislation in this area, the rules implementing the principle of res judicata  are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, such procedural rules must not be less favourable than those governing similar domestic situations (principle of equivalence) and must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see judgments in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 24, and Impresa Pizzarotti , C‑213/13, EU:C:2014:2067, paragraph 54 and the case-law cited).
41. As regards application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, judgments in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 27, and Târșia , C‑69/14, EU:C:2015:662, paragraphs 36 and 37 and the case-law cited).
42. In that regard, it must be noted that an interpretation of national law, such as that described in paragraph 30 of the present judgment, can have the consequence, in particular, that effects are attributed to the decision of a national court, in the present case the Oberlandesgericht Hamm (Higher Regional Court, Hamm), which frustrate the application of EU law, in that they make it impossible for the national courts to satisfy their obligation to ensure compliance with the third sentence of Article 108(3) TFEU.
45. In those circumstances, it must be concluded that a national rule which prevents the national court from drawing all the consequences of a breach of the third sentence of Article 108(3) TFEU because of a decision of a national court, which is res judicata , given in a dispute which does not have the same subject-matter and which did not concern the State aid characteristics of the contracts at issue must be regarded as being incompatible with the principle of effectiveness. A significant obstacle to the effective application of EU law and, in particular, a principle as fundamental as that of the control of State aid cannot be justified either by the principle of res judicata  or by the principle of legal certainty (see, by analogy, judgments in Fallimento Olimpiclub , EU:C:2009:506, paragraph 31, and Ferreira da Silva e Britto , C‑160/14, EU:C:2015:565, paragraph 59).