OTP Bank Nyrt. v Magyar Állam and Magyar Államkincstár.
Date: 2015-03-19
26. In that respect, it should be noted, first of all, that in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, judgment in Bruno and Others , C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 18 and the case-law cited).
27. According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments in van der Weerd and Others , C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 22, and Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).
28. Thus, in exceptional circumstances, the Court can examine the conditions in which the case was referred to it by the national court (see, to that effect, judgment in PreussenElektra , C‑379/98, EU:C:2001:160, paragraph 39). The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (judgment in Schmidberger , C‑112/00, EU:C:2003:333, paragraph 32 and the case-law cited).
29. Next, it should be noted that, according to the case-law of the Court, although the Court may not, in proceedings under Article 267 TFEU, rule upon the compatibility of a provision of domestic law with EU law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of EU law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, inter alia, judgment in Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 34 and the case-law cited).
30. More specifically, it has already been held that the Commission’s powers for the purpose of determining whether aid is compatible with the internal market do not preclude a national court from referring to the Court of Justice a question on the interpretation of the concept of aid (judgment in DM Transport , C‑256/97, EU:C:1999:332, paragraph 15). Accordingly, the Court has jurisdiction, inter alia, to give the national court guidance on interpretation of EU law to enable it to determine whether a national measure may be classified as State aid under that law (see, to that effect, judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 24 and the case-law cited).
31. Proceedings may be brought before the national courts requiring them 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 and, if appropriate, to verify whether the Member State concerned has complied with that obligation (see, to that effect, judgment in P , C‑6/12, EU:C:2013:525, paragraph 38 and the case-law cited).
32. Finally, as is clear from paragraph 29 of the present judgment, since it is for the Court to give a useful answer to the referring court, the Court may have to reformulate the questions referred to it (see, inter alia, judgment in Byankov , C‑249/11, EU:C:2012:608, paragraph 57 and the case-law cited).
35. Article 108 TFEU establishes different procedures according to whether the aid is existing or new. Whilst under Article 108(3) TFEU new aid must be notified to the Commission and may not be implemented until that procedure has led to a final decision, under Article 108(1) TFEU existing aid may be lawfully implemented so long as the Commission has made no finding of incompatibility (judgment in P , EU:C:2013:525, paragraph 36 and the case-law cited).
36. Under that system of supervision, the Commission and the national courts have different powers and responsibilities (judgment in Namur-Les assurances du crédit , C‑44/93, EU:C:1994:311, paragraph 14).
37. In accordance with the case-law cited in paragraph 31 of the present judgment, proceedings 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 should or should not have been made subject to the preliminary examination procedure provided for in Article 108(3) TFEU. If those courts reach the conclusion that the measure concerned should in fact have been previously notified to the Commission, they must declare it to be unlawful. On the other hand, national courts do not have jurisdiction to give a decision on whether State aid is compatible with the internal market, that assessment falling within the exclusive competence of the Commission (see to that effect, judgment in P , EU:C:2013:525, paragraph 38 and the case-law cited).
Substance
40. According to the settled case-law of the Court, the definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, inter alia, judgment in Cassa di Risparmio di Firenze and Others , C‑222/04, EU:C:2006:8, paragraph 131 and the case-law cited).
47. According to the case-law of the Court, where aid is granted in the form of a guarantee it is essential that the national courts identify the beneficiaries of the aid, those beneficiaries being either the borrower or the lender or, in certain cases, both of them together (see, to that effect, judgment in Residex Capital IV , C‑275/10, EU:C:2011:814, paragraph 37).
49. According to the case-law of the Court, an aid may be selective with regard to Article 107(1) TFEU even where it concerns a whole economic sector (see, in particular, to that effect, judgments in Belgium  v Commission , C‑75/97, EU:C:1999:311, paragraph 33 and Paint Graphos and Others , EU:C:2011:550, paragraph 53).
54. For the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, it being necessary only to examine whether that aid is liable to affect such trade and distort competition (judgments in Italy  v Commission , C‑372/97, EU:C:2004:234, paragraph 44, and Unicredito Italiano , C‑148/04, EU:C:2005:774, paragraph 54).
55. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, those undertakings must be regarded as affected by that aid (see judgment in Unicredito Italiano , EU:C:2005:774, paragraph 56 and the case-law cited).
56. In that connection, it is not necessary that the beneficiary undertaking should itself participate in the intra-Community trade. Aid granted by a Member State to an undertaking may help to maintain or increase domestic activity, with the result that undertakings established in other Member States have less chance of penetrating the market of the Member State concerned. Furthermore, the strengthening of an undertaking which, until then, was not involved in intra-Community trade may place that undertaking in a position which enables it to penetrate the market of another Member State (judgment in Unicredito Italiano , EU:C:2005:774, paragraph 58).
60. In the second place, and assuming that the referring court classifies the State guarantee as ‘State aid’ within the meaning of Article 107(1) TFEU, in order to enable it to ascertain the lawfulness of the guarantee, it must be determined whether the guarantee was subject to the notification procedure laid down in Article 108(3) TFEU. In order to do so it must be established whether that guarantee constitutes existing or new aid.
66. According to the settled case-law of the Court, an aid measure which is put into effect in infringement of the obligations arising from Article 108(3) TFEU is unlawful (judgment in Distribution Casino France and Others , C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraph 30 and the case-law cited).
68. It follows from the foregoing that even if the referring court classifies the State guarantee as ‘State aid’ within the meaning of Article 107(1) TFEU, such a guarantee must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the Commission in accordance with Article 108(3) TFEU. It is for the referring court to verify whether the Member State concerned has complied with that obligation and, if that is not the case, to declare that guarantee unlawful.
69. In the third place, as regards the consequences arising from such unlawfulness and, more specifically, as far as concerns the beneficiaries of the unlawful aid, it must be recalled, first of all, that the Court has repeatedly stated that it is for the national courts to draw the necessary conclusions with respect to the infringement of Article 108(3) TFEU, in accordance with their 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 (see, to that effect, judgments in van Calster and Others , C‑261/01 and C‑262/01, EU:C:2003:571, paragraph 64; Xunta de Galicia , C‑71/04, EU:C:2005:493, paragraph 49; and CELF and Ministre de la Culture et de la Communication , C‑199/06, EU:C:2008:79, paragraph 41).
70. The logical consequence of the finding that aid is unlawful is its removal by means of recovery in order to restore the previous situation (see, inter alia, judgments in Italy and SIM –– 2 Multimedia  v Commission , C‑328/99 and C‑399/00, EU:C:2003:252, paragraph 66, and Mediaset v Commission , C‑403/10 P, EU:C:2011:533, paragraph 122).
71. Accordingly, the main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords (see, to that effect, judgments in Germany  v Commission , C‑277/00, EU:C:2004:238 paragraph 76, and Commission  v MTU Friedrichshafen , C‑520/07 P, EU:C:2009:557, paragraph 57). By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (judgment in Commission  v Italy , C‑350/93, EU:C:1995:96, paragraph 22).
72. It is only in exceptional circumstances, should the case arise, that it would be inappropriate to order repayment of the aid (see judgment in Residex Captial IV , EU:C:2011:814, paragraph 35 and the case-law cited).
74. Next, it should be noted that the Commission alone is competent to determine the compatibility of aid with the internal market, in such a situation, undertaking that examination even where the Member State fails to have regard to the prohibition, referred to in the final sentence of Article 108(3) TFEU, on the putting into effect of the aid measures. The national courts do no more than preserve, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of that prohibition (see, to that effect, judgment in CELF and Ministre de la Culture et de la Communication , EU:C:2008:79, paragraph 38 and the case-law cited).
76. However, even if the Commission were to declare, in a future final decision, that the State guarantee is compatible with the internal market, the national court is still required to order the recovery of that State aid, in accordance with its national law. If the direct effect of the last sentence of Article 108(3) TFEU is not to be compromised or the interests of individuals, which are to be protected by national courts, are not to be disregarded, the Commission’s final decision does not have the effect of regularising ex post facto  the implementing measures which were unlawful by reason of their having been adopted in continuation of the prohibition laid down by that article. Any other interpretation would encourage the Member States to disregard the prohibition laid down in the last sentence of Article 108(3) TFEU and would deprive it of its effectiveness (see, to that effect, judgments 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, paragraph 16, and SFEI and Others , C‑39/94, EU:C:1996:285, paragraphs 67 to 69).
77. Finally, and as regards in particular the beneficiaries of the State guarantee, it must be stated that, taking account of the mandatory nature of the review of State aid by the Commission pursuant to Article 108 TFEU, first, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article and, second, a diligent economic operator should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, so that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (judgment in Unicredito Italiano , EU:C:2005:774, paragraph 104 and the case-law cited).
78. It follows from the foregoing considerations that the beneficiaries of a State guarantee, such as that at issue in the main proceedings, granted without regard for Article 108(3) TFEU and, therefore, unlawful, do not have any remedies available in accordance with EU law.
79. In the light of all of the above, the answer to the questions referred is that:
– the State guarantee granted exclusively to credit institutions prima facie constitutes ‘State aid’ within the meaning of Article 107(1) TFEU. However, it is for the referring court to ascertain more specifically the selective nature of such a guarantee by determining, in particular, whether, following the amendment of the Decree of 2001 which is supposed to have taken place in 2008, that guarantee may be granted to economic operators other than credit institutions and, in the affirmative, whether that fact may call into question the selective nature of that guarantee;
– if the referring court classifies the State guarantee at issue in the main proceedings as ‘State aid’ within the meaning of Article 107(1) TFEU, such a guarantee must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the European Commission in accordance with Article 108(3) TFEU. It is for the referring court to verify whether the Member State concerned has complied with that obligation and, if that is not the case, to declare that guarantee unlawful;
– the beneficiaries of a State guarantee, such as that at issue in the main proceedings, granted without regard for Article 108(3) TFEU and, therefore, unlawful, do not have any remedies available in accordance with EU law.
Costs