New European Study on the enforcement of State aid rules and decisions by national courts

The European Commission ordered a study on the enforcement of State aid rules and decisions by national courts, which has now been published. A similar study was undertaken in 2006, and updated in 2009.

For this new study coordinated by Spark Legal Network, Annabelle Lepièce and Kim Gillade are the national experts for Belgium.

Several interesting points are drawn by this study of the enforcement, during the study period from 1 January 2007 to 31 December 2017, by national courts, including important cases decided in 2018.

It notes an overall increase in the number of judgments handed down by national courts during the study period.

Despite the increased court litigation, national courts have rarely concluded that unlawful aid has been granted and hence rarely awarded remedies. The study finds that “[i]n public enforcement, this can be considered as a positive trend: it shows that national recovery orders are rarely successfully challenged in national courts. [...] On the other hand, the low number of remedies awarded by national courts in the identified private enforcement cases calls for further reflection.”

It identified certain best practices adopted by a number of Member States making State aid enforcement more effective. “Many of these practices are designed to embed a ‘culture’ of enforcement of State aid rules among the national stakeholders (i.e. granting authorities, beneficiaries and third parties).”

These best practices include measures relating to recovery, in particular by adopting specific legal frameworks governing aid recovery; concerning national screening mechanisms, ex-ante and ex-post; as well as best institutional practices, which aim to make judges and claimants more familiar with state aid rules.

Finally, the study concludes that moderate use is made by national courts of cooperation tools with the Commission, which include requests for information; requests for opinion; and amicus curiae observations. The study formulates a number of suggestions to support the use of cooperation tools.

The final study is available on the following link: https://ec.europa.eu/competition/publications/

The reports for each Member State can be consulted on the following link: https://state-aid-caselex-accept.mybit.nl/report

Kim Gillade, Associate, kim.gillade@cms-db.com

Annabelle Lepièce, Partner, annabelle.lepiece@cms-db.com