European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The national authorities are not responsible, within the framework of their jurisdiction ratione materiae, to decide on the compatibility of State aid, which is part of the exclusive jurisdiction of the Commission .
The procedural rules laid down in Article 108(3) TFEU on the obligation to inform beforehand the Commission of any plans to grant or alter new aid, have direct effect and may be invoke …

National courts and authorities

The national authorities are not responsible, within the framework of their jurisdiction ratione materiae, to decide on the compatibility of State aid, which is part of the exclusive jurisdiction of the Commission .

The procedural rules laid down in Article 108(3) TFEU on the obligation to inform beforehand the Commission of any plans to grant or alter new aid, have direct effect and may be invoked before national courts , which are not required to stay proceedings or declare that they lack jurisdiction where the Commission, to which the matter has been also referred, has not yet given a final decision as to whether the State measure constitutes State aid . In effect, national courts are required to uphold the individual rights arising out of the provisions of the Treaty . Therefore, they have to remedy the consequences of the unlawfulness of an aid implemented before a final decision on compatibility  or to refuse to apply a national provision relating to the principle of res judicata which prevents the recovery of an unlawful State aid which has been found to be incompatible with the internal market in a decision which has become final .

While the assessment of the compatibility of aid measures with the internal market falls within the exclusive jurisdiction of the Commission , subject to review by the Court of Justice, the national courts may intervene to interpret and apply the concept of aid 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 that procedure . They cannot, however, without undermining the effectiveness of Article 108(3) TFEU, find that a measure does not constitute aid within the meaning of Article 107(1) and thereby refuse to suspend its implementation, where the Commission has stated in its decision to initiate the formal examination procedure that that measure was capable of presenting aid elements . Moreover, a dispute concerning the recovery of the aid, in particular with respect to the findings of fact contained in the decision or in the light of the precise quantification of the actual advantage to be recovered, falls within the jurisdiction of the national court . In particular, it may suspend a recovery decision where it entertains serious doubts as to its validity, provided that there is urgency, that it takes due account of the interests of the Union and that, in its assessment of those conditions, it complies with any decisions of the Court of Justice or the General Court ruling on the lawfulness of the measure or an application for provisional measures seeking similar interim relief at EU level . That national court may not however, in order to negate the effects of an aid that has not been notified, order the partial rebate of a tax where such a decision would have the effect of extending the circle of recipients of the aid . Where the national court has doubts as to whether the measure at issue constitutes State aid or as to the validity or interpretation of the decision to initiate the formal examination procedure, it may seek clarification from the Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, it may ask the Commission for clarification or refer a question to the Court of Justice for a preliminary ruling .

In its Notice on the enforcement of State aid law by national courts , the Commission specifies that the national courts may not only prevent the payment of unlawful aid and order its recovery, regardless of its compatibility, but also order the payment of illegality interest, grant damages for competitors and other third parties and order interim measures. A national court's supervisory power remains however limited. It must uphold the claim for recovery of non-notified aid unless, due to exceptional circumstances, the recovery is inappropriate. Likewise, it may suspend recovery orders and grant interim relief only if it has serious doubts as regards the validity of the EU act, if there is urgency in order to avoid serious and irreparable damage and taking due account of the EU interest . Lastly, a national court can only assess whether the conditions for exemption are met where the case pending before it concerns the applicability of a block exemption regulation or an existing or approved aid scheme .

See for French law, French Competition Council decision No 04/D/02 of 10 February 2004, the Competition Authority has jurisdiction only to apply book IV of the French Commercial Code and Articles 101 and 102 TFEU.

Case 77/72 Capolongo v Azienda Agricola Maya [1973] ECR 611, LawLex200500005416JBJ; Case C-17/91 Lornoy and others v Belgian State [1992] ECR I-6523, LawLex200500005298JBJ; Case T-49/93 SIDE v Commission [1995] ECR II-2501, LawLex200500005111JBJ.

Case C-304/09 Commission v Italy, LawLex201000001512JBJ, which states that, in order to suspend a recovery decision, the national court, in addition to referring the question on validity to the Court for preliminary ruling, must, when making the interim order, set out the reasons for which it considers that the Court should find the EU measure to be invalid.

Case C-368/04 Transalpine Ölleitung in Österreich [2006] ECR I-9957, LawLex200700001470JBJ.

Case C-284/12 Deutsche Luftansa AG, Judgment of 21 November 2013, LawLex201300001622JBJ.

Commission notice No EC 2009/C 85/01 of 9 April 2009, at pts 24 et seq., which details each of those prerogatives.

Commission notice No EC 2009/C 85/01 of 9 April 2009, at pt 68.

Commission notice No EC 2009/C 85/01 of 9 April 2009, at pt 16.

Case C-39/94 SFEI and others [1996] ECR I-3547, LawLex200500005133JBJ.

Case C-174/02 Streekgewest [2005] ECR I-85, LawLex200600000034JBJ.

Case C-199/06 CELF and ministre de la Culture et de la Communication [2008] ECR I-469, LawLex200800000275JBJ.

Case C-119/05 Lucchini [2007] ECR I-6199, LawLex200800000277JBJ.

Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ: a national court does not have jurisdiction to decide on the compatibility with the Treaty of an existing aid, which has not been the subject of a Commission Decision to alter or abolish it, or of a new aid introduced in accordance with Article 108 TFEU; Case C-78/90 Compagnie commerciale de l'Ouest v Receveur principal des douanes de La Pallice-Port [1992] ECR I-1847, LawLex200500004873JBJ: the national court, having jurisdiction in the case of failure by the Member State concerned to comply with Article 108(3) TFEU, cannot decide as to any incompatibility of an aid with Article 107 TFEU which may be the main issue in actions before it or may arise as a subsidiary issue; Case C-119/05 Lucchini [2007] ECR I-6199, LawLex200800000277JBJ: a national court has no jurisdiction to determine that a decision of incompatibility is invalid.

Case C-44/93 Namur-Les assurances du crédit v Office national du ducroire and Belgian State [1994] ECR I-3829, LawLex200500005058JBJ.

Case T-354/99 Kuwait Petroleum (Nederland) v Commission [2006] ECR II-1475, LawLex200700001500JBJ.

European Competition Law

426. National courts and authorities

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Les notions juridiques connexes

426. National courts and authorities

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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