Private enforcement

Study on private enforcement of state aid rules by national courts

ESA has commissioned a study on private enforcement of state aid rules by national courts in the EEA EFTA States. The study covers the first 25 years of the lifetime of the EEA Agreement. Study on private enforcement of state aid rules by national courts in the EEA EFTA States (2019)

The study complements two studies commissioned by the European Commission; Study on the enforcement of State aid rules and decisions by national courts (2019) and Study on the enforcement of State aid law at national level (2006).

National courts’ enforcement of state aid law

ESAs guidelines on the enforcement of state aid law by national courts (the “Enforcement Guidelines”), underlines the key role of national courts in the enforcement of EEA State aid law. National courts can be called upon to apply state aid law in several scenarios, particularly:

The last sentence of Article 1(3) in Part I of Protocol 3 to the SCA, provides that Contracting Parties may not implement new state aid measures before they have been approved by ESA ('standstill clause'). Any new aid put into effect without the authorisation of ESA is unlawful. Parties affected by unlawful state aid can bring direct action before national courts for damages, recovery and/or injunctive measures. ESAs Enforcement Guidelines gives further guidance on possible remedies against violations of the standstill obligation, such as the repayment of unlawful aid, damages claims, interim measures or interest payments.

National courts also play an important role in the enforcement of recovery decisions adopted by ESA, in accordance with Article 14(3), in part II of Protocol 3 to the SCA. The involvement of national courts in such cases usually arises from actions brought by beneficiaries to review the legality of the repayment request issued by national authorities. However, depending on national procedural law, other types of legal action may be possible, such as actions by Contracting Parties against the beneficiary aimed at the full implementation of the ESAs recovery decision, or claims from third parties for compensation for damages from national authorities for failure to implement the ESAs recovery decision. The Recovery Guidelines provide further information on the role of national courts in this respect.

Cooperation with ESA

When called upon to apply the state aid rules to a case pending before it, a national court must respect any relevant EEA rules in the area of state aid and the existing case law of the European Courts. In addition, a national court may seek guidance in ESAs decision-making practice and in the guidelines concerning the application of the state aid guidelines issued by ESA. However, there may be circumstances in which these tools do not offer the national court sufficient guidance on the issues at stake. Given the key role which national courts play in the enforcement of the state aid rules, ESA is committed to support national courts where they need assistance in reaching a decision on a pending case. Pursuant to ESAs Enforcement Guidelines, the cooperation can take two forms:

ESAs duty to assist national courts in the application of state aid rules comprises the obligation to transmit relevant information in its possession to national courts. ESA will endeavour to provide the national court with the requested information within one month from the date of the request. ESAs Enforcement Guidelines contains further information on the procedures for requesting such information.

ESA gives national courts the opportunity to request an opinion on relevant issues concerning the application of the state aid rules. An opinion from ESA may, in principle, cover all economic, factual or legal matters which arise in the context of the national proceedings. ESA will endeavour to provide the national court with the requested opinion within four months from the date of the request. ESAs Enforcement Guidelines contains further information on the procedures for requesting an opinion.

For matters concerning the interpretation of EEA law, national courts can also ask for an advisory opinion of the EFTA Court under Article 34 of the Surveillance and Court Agreement.




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