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This book corresponds to the study commissioned by the European Commission from Hogan Lovells on the application of State aid law in the Member States.
In 2005, the European Commission concluded a research contract with the law firm Lovells - now Hogan Lovells - on the implementation of state aid law in the Member States. In 2006, with the collaboration extended to other law firms, the study had two purposes: firstly, the decisions adopted by national judges in the fifteen Member States (thus excluding the new Member States resulting from the 2004 enlargement), and secondly, the enforcement of negative decisions of the European Commission in five Member States (Study on the enforcement of state aid law at national level, Competition studies 6, Office for Publication of the European Communities, OPOCE, Luxembourg, http://ec.europa.eu/comm/ competition/state_aid/studies_reports/studies_reports.html). This study provided input to the European Commission’s reflections for the drafting of two notices (Enforcement notices) ("Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid", OJEU C. 272 of 15 November 2007, p. 4; "Notice on the enforcement of State aid rules by national courts", OJEU C. 85 of 9 April 2009 p. 1). This study was updated in 2009 after the Commission concluded a new and particularly ambitious research contract with Hogan Lovells. Thus, all 27 Member States were analysed.
A rapporteur has been appointed for each Member State. The rapporteur, whether a practitioner or an academic, had to proceed in seven stages in order to assess, within the interstices of institutional and procedural autonomy, the elements of convergence and divergence. 1) Each report first of all presents the general framework by identifying the national authorities competent to grant the aid and those involved in the notification procedure. 2) Issues related to the detection of State aid are then addressed. Firstly, the existence of a legislative or regulatory framework to ensure compliance with the notification obligation is assessed. Secondly, the jurisdictional authorities involved in State aid litigation were identified. 3) What are the consequences of the direct effect recognised in Article 108(3) TFEU on the office of the national court? The study analyses the powers of the national court faced with unlawful aid, whether to recover the aid or to make good the damage caused by it. 4) Each report then presents the procedural rules applicable to the recovery of aid as well as the judicial review of recovery decisions. 5) The status of third parties before national courts is also set out, as well as 6) cooperation with the authorities of the European Union, the Commission and the Court of Justice of the European Union. 7) Finally, where appropriate, reforms, trends or recommendations complete the national study.
The conclusion of the study allows us to draw some broad outlines. There is an increase in State aid litigation before national courts (especially tax measures), with the intensity of this litigation varying from one State to another; there is thus a very clear contrast between the "old" Member States (in particular France, Italy, Germany, followed by the Netherlands, Sweden and Austria) and the "new" Member States. Litigation is significant for the former, but less so for the latter. All judges are potentially concerned, from the ordinary judge to the supreme judge, with full procedural autonomy within the limits set by the case law of the Court of Justice. National judges have the necessary powers to ensure the effective protection of the rights that individuals derive from Article 108(3) TFEU. The example of the burden of proof is enlightening; it is indeed difficult for an individual to establish the existence of State aid, as this qualification generally involves a complex economic analysis. The study thus cites a few cases in which the classification as State aid was not accepted for lack of evidence. The interest of the Boiron case law (CJCE, 7 September 2006, Laboratoires Boiron, aff. C-526/04, Rec., 2006, I, p. 7529; Com., 26 June 2007, Bull. 2007, IV, nº 174, p. 190, pourvoi nº 02-31.241) as well as the intervention of the European Commission under the amicus curiae, still very rare in practice, but destined to develop, according to the study, with the Enforcement notice of 2009. At the same time, before national judges, applicants no longer hesitate to seek compensation for the damage suffered as a result of the payment of illegal or incompatible aid. While the principle of such compensation is accepted in most Member States, judges are nevertheless reluctant to grant requests for compensation. In general, it is regrettable that the status of third parties before national courts in State aid matters is still in its infancy.
While the study of some Member States is particularly thorough, the reader may be left hungry about other Member States because of the superficiality of some of the developments inherent in any comparative exercise of this magnitude. And, to the credit of the national rapporteurs, state aid law is still in its infancy in some Member States. Above all, this study should be understood as the first stone in a major project to which the review will contribute. Concurrences participates: the establishment of a database of national State aid decisions, the State Aid Thesaurus.
