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 recovery of an unlawful State aid must not be contrary to the principle of legal certainty . The Commission must make sure during the procedure that it does not mislead the beneficiaries on the nature of the aid granted to them. It is required to take into consideration on its own initiative the exceptional circumstances that provide justification for it to refrain from ordering the recovery o …

Beneficiary's obligation to repay aid

The recovery of an unlawful State aid must not be contrary to the principle of legal certainty . The Commission must make sure during the procedure that it does not mislead the beneficiaries on the nature of the aid granted to them. It is required to take into consideration on its own initiative the exceptional circumstances that provide justification for it to refrain from ordering the recovery of unlawful aid schemes where such recovery is contrary to a general principle of EU law , such as the principle of legal certainty or the respect for the legitimate expectation of beneficiaries , or where it has raised no objection towards a similar aid scheme in a decision made public . The principle of legitimate expectations presupposes the existence of precise, unconditional and concordant assurances provided by the Commission . The beneficiary may rely on a legitimate expectation that a State measure is lawful, in particular where it bears a close resemblance to an aid scheme authorized by the Commission in another Member State . It may thus object to a request for recovery due to the legitimate expectation it entertained in the compatibility of all aid granted with the internal market before the initiation of a formal investigation procedure . A Member State whose authorities have granted aid in breach of Article 108 may also invoke the legitimate expectations of the beneficiary to challenge the validity of a Commission recovery judgment before the court, but not to avoid the obligation to take the necessary measures to enforce it .

By contrast, where the procedure provided for in Article 108 TFEU was not followed  or where the decision not to raise any objections was challenged in due time before the Court, then annulled by it , the beneficiary of aid could not entertain any legitimate expectation that the aid was lawful. Lastly, the recovery of an unlawful State aid is contrary to the principle of legal certainty where the Commission delayed the exercise of its powers by not following up letters describing the scheme in question and misled its beneficiaries on its general nature .

The purpose of a decision to recover unlawful State aid is to annul all advantages unduly received by the beneficiary in order to restore the normal conditions of competition. The beneficiary must therefore repay not only the amount of the aid but also the interest received . Since the recovery of unlawful aid requires the return of the advantage granted to the beneficiary in order to eliminate the distortion of competition caused by this advantage, the latter cannot be revalued, at the time of recovery, on the basis of the actual economic results of the agreements concerned for the parties .

The calculation of the amount of an aid is not limited to the obvious financial advantages such as the amount of a guarantee, a loan  or a claim, a tax exemption , or an offer to buy at guaranteed price , but takes account of the context in which the measures in question were granted and their indirect effects for the beneficiary. Although the recovery decision is not required to indicate the exact amount of aid to be repaid, it must precisely identify the advantage granted in order to enable the State granting the aid to determine by itself the amount to be repaid . The amount may be calculated according to the rules of national law insofar as it complies with the obligation of good faith and loyal cooperation provided for in Article 4 TEU. The amount of the aid may, inter alia, be determined in relation to the loan granted , the value of debts written-off , the present value of the capital contribution , the difference between the book value and the price paid for the purchase of shares above the market value , or the difference between the net asset value of the undertaking sold and the price actually paid  , the average price of registered real estate transactions involving land with similar characteristics to, and in close proximity to, the land being appraised  , or the full amount of the negative market price exceeding the cost of insolvency where that cost is nil . The State may also take account of the deductions and relief provided for under national law if it is shown, in the light of the operations actually carried out under the aid, that the beneficiaries were entitled to benefit from them . The fact that there may be no amount to be recovered does not mean that the national measure did not confer an advantage, since at the date of the Commission decision the principle of the aid was established by the existence of a right to the tax exemption in question, and the advantage could be realized . No provision of EU law requires the Commission, when ordering the recovery of unlawful aid declared incompatible with the internal market, to fix the exact amount of aid to be repaid, so that it is sufficient for its decision to contain indications enabling the addressee to determine this amount itself, without undue difficulty  .

The interest, which “is the equivalent of the financial advantage arising from the availability of the funds in question, free of charge, over a given period” , must also be recovered. Giving up interest would amount to leave to the beneficiary the proceeds of incidental advantages . The interest rate is determined in accordance with the provisions of Regulation No 794/2004 . It is independent from the effective use of the funds by the beneficiary . However, the decision to recover an unlawful aid, with corresponding interest, must take account of the national legislation which provides that the debts of undertakings will cease to produce interest from the date they are declared bankrupt .

If recovery is carried out in accordance with the procedures laid down by the national law of the Member State concerned, as required by Article 14(3) of Regulation No 659/1999, the latter must allow for the immediate and effective enforcement of the Commission' decision, so that there is nothing to prevent the Commission from specifying, in the recovery decision, that the Member State in question must ensure that the beneficiaries repay the amounts of aid actually received, without being able to transfer the burden of recovery of these amounts to another party to the contract . The Member State must also take all appropriate measures to ensure that the Commission's decision is implemented, so as to achieve effective recovery of the sums due in order to eliminate the distortion of competition resulting from the State aid .

See for Commission decisions which take the principle into account, Commission decision No 2004/89/EC of 9 July 2003, Aid scheme implemented by Italy for natural disasters, LawLex200500004586JBJ; No 2007/256/EC of 20 December 2006, Aid scheme implemented by France under Article 39 CA of the General Tax Code, LawLex200700001560JBJ.

See also Commission Notice - Communication No 2019/C 247/01 on the recovery of unlawful and incompatible State aid, OJ of 23 July 2019,

Commission decision No 2007/256/EC of 20 December 2006, Aid scheme implemented by France under Article 39 CA of the General Tax Code, LawLex200700001560JBJ.

Case T-514/14 Hispavima, Judgment of 24 April 2014, not available in English, which recalls that the obligation for the Member State concerned to cancel, by means of recovery, aid considered by the Commission to be incompatible with the internal market is aimed at restoring the situation prior to the granting of the aid, this objective being achieved as soon as the aid in question, increased where appropriate by default interest, has been repaid by the beneficiary or the undertakings which actually enjoyed it.

Case C-758/21 P Ryanair DAC Judgment of 23 November 2023, .

Commission decision No 95/466/EC of 26 July 1995, Vlaamse Luchttansportmaatschappij (NV), LawLex200500005363JBJ; No 97/271/EC of 18 December 1996, Forges de Clabecq, LawLex200500004781JBJ; Case T-16/96 Cityflyer Express v Commission [1998] ECR II-757, LawLex200500005256JBJ; Case C-288/96 Germany v Commission [2000] ECR I-8237, LawLex200500004946JBJ; Commission decision No 2003/626/EC of 27 November 2002, Thuringia loan programme for small and medium-sized enterprises, LawLex200500004658JBJ; No 2005/786/EC of 2 March 2005, State aid implemented by Germany for Chemische Werke Piesteritz, LawLex200600001234JBJ; No 2005/920/EC of 20 July 2005, Greußener Salamifabrik GmbH, LawLex200600001235JBJ; No 2006/947/EC of 7 December 2005, On the State Aid implemented by Belgium for ABX Logistics, LawLex200700000456JBJ.

Case C-183/91 Commission v Greece [1993] ECR I-3131, LawLex200500004645JBJ; Case C-404/97 Commission v Portugal [2000] ECR I-4897, LawLex200500004963JBJ; Case C-404/00 Commission v Spain [2003] ECR I-6695, LawLex200500004600JBJ: in this case, tax credits; Case C-148/04 Unicredito Italiano [2005] ECR I-11137, LawLex200600001240JBJ.

Commission decision No 98/665/EC of 25 February 1998, Hibeg, LawLex200500004754JBJ: purchase of unsold shares; No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ; Case T-366/00 Scott v Commission [2003] ECR II-1763, LawLex200500004830JBJ: purchase of a land at preferential price.

Case T-68/03 Olympiaki Aeroporia Ypiresies v Commission [2007] ECR II-2911, LawLex200900000054JBJ; Case C-441/06 Commission v France [2007] ECR I-8887, LawLex200800000238JBJ; the Commission has however committed to identify however each time it is possible, Commission Notice No 2007/C 272/05 of 27 November 2007, at pts 36 et seq.

Commission decision No 95/466/EC of 26 July 1995, Vlaamse Luchttansportmaatschappij (NV), LawLex200500005363JBJ; Case T-16/96 Cityflyer Express v Commission [1998] ECR II-757, LawLex200500005256JBJ; Case C-288/96 Germany v Commission [2000] ECR I-8237, LawLex200500004946JBJ; Commission decision No 2003/626/EC of 27 November 2002, Thuringia loan programme for small and medium-sized enterprises, LawLex200500004658JBJ.

Commission decision No 2000/536/EC of 2 June 1999, Aid granted by Italy to Seleco SpA, LawLex200400002593JBJ.

Commission decision No 92/321/EEC of 25 March 1992, Intelhorce SA, LawLex200500004684JBJ.

Commission decision No 2003/883/EC of 11 December 2002, Aid scheme C 46-2001, LawLex200500004667JBJ. The protection of legitimate expectations, which is a fundamental principle of EU law and allows any economic operator in respect of which an institution has given rise to justified expectations, to rely on it, can only be invoked if, cumulatively, specific, unconditional and concordant assurances, emanating from authorized, reliable sources have been provided by the administration, if these assurances are likely to give rise to a legitimate expectation in the mind of the person to whom they are addressed and if these assurances comply with the applicable standards, Case T-119/07 and T-207/04 Italian Republic, Eurallumina SpA, Judgment of 17 September 2019, LawLex202000002004JBJ.

Commission decision No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ.

Commission decision No 2008/717/EC of 27 February 2008, State aid C 46-07 (ex NN 59-07), LawLex200900000234JBJ: Failing any intention from the Member State to restart the tender bid, an aid resulting from the privatization of an undertaking at reduced price may be calculated from the difference between the net asset value of the undertaking sold and the price actually paid.

Case C-325/22 TS and HI, Judgment of 19 October 2023, LawLex202400004700JBJ.

Commission decision No 2010/137 of 28 August 2009, Austria Austrian Airlines, LawLex201000000651JBJ.

Case C-705/21 Fossil (Gibraltar) Ltd v Commissionner of Income Tax, Judgment of 15 September 2022, LawLex202200007277JBJ.

Case T-668/21 Sicilia Regionale Marittima SpA, Judgment 26 October 2022, not available in English.

Case T-158-96, Judgment of 16 December 1999, LawLex200900002216JBJ.

Case T-158/96 Acciaierie di Bolzano v Commission [1999] ECR II-3927, LawLex200900002216JBJ.

Case C-350/93 Commission v Italy [1995] ECR I-699, LawLex200500005142JBJ; Case C-480/98 Spain v Commission [2000] ECR I-8717, LawLex200500004969JBJ.

Regulation No 794/2004 of 21 April 2004, Article 9(1): “[…] [the interest rate] shall be calculated on the basis of the average of the five-year inter-bank swap rates for September, October and November of the previous year, plus 75 basis points”.

Case T-348/03 Koninklijke Friesland Foods v Commission [2007] ECR II-101.

Case T-35/99 Arduino [2002] ECR I-1529, LawLex200500005047JBJ.

Case C-480/98 Spain v Commission [2000] ECR I-8717, LawLex200500004969JBJ.

Case T-508/14 Naturgy Energy Group v Commission, Judgment of 15 May 2024, not available in English.

Case T-700/13 Caixabank, Judgment of 8 May 2024, not available in English.

Case T-131/21 Região Autónoma da Madeira, Judgment of 21 June 2023,not availablein English: the national authorities' belief that the aid scheme at issue, as implemented, was outside the classification of State aid within the meaning of Article 107(1) TFEU, or should be classified as existing aid within the meaning of Article 1(b)(ii) of Regulation No 2015/1589, cannot amount to precise, unconditional and consistent assurances provided by the Commission, so that no breach of the principle of the protection of legitimate expectations can be found; Case T-256/15 Telefónica (SA), Judgment of 27 September 2023, not available in English: the Commission cannot refuse to recognize the legitimate expectations of the beneficiaries of an aid scheme when, in its replies to the institutions of the granting Member State, it has offered precise, unconditional and consistent assurances of such a nature that the beneficiaries have entertained justified hopes in the fact that the aid scheme was lawful and that any advantage deriving from it could not subsequently be the subject of a recovery procedure.

Commission decision No 2003/883/EC of 11 December 2002, Aid scheme C 46-2001, LawLex200500004667JBJ; No 2004/76/EC of 13 May 2003, Aid scheme implemented by France for headquarters and logistics centres, LawLex200500004584JBJ; No 2004/77/EC of 24 June 2003, US Foreign Sales Corporations, LawLex200500004585JBJ; No 2006/621/EC of 2 August 2004, State aid in favor of France Telecom, LawLex200700001457JBJ.

Commission decision No 2005/468/EC of 30 June 2004, Sioen Fibres SA, LawLex200600001238JBJ.

Case T-601/20 Tirrenia di navigazione SpA, Judgment of 18 May 2022, not available In English.

Case C-5/89 Commission v Germany [1990] ECR I-3437, LawLex200500004640JBJ; Case C-24/95 Land Rheinland-Pfalz v Alcan Deutschland [1997] ECR I-1591, LawLex200500005094JBJ.

Case C-169/95 Spain v Commission [1997] ECR I-135, LawLex200500005093JBJ; Case T-362/05 Nuova Agricast v Commission [2008].

European Competition Law

445. Beneficiary's obligation to repay aid

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445. Beneficiary's obligation to repay aid

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise