The Courtroom of Justice has been not too long ago offered with some instances the place a State support measure was argued to have (not) infringed EU inside market legislation and will thus (not) have been authorised by the European Fee. These instances increase the frequent situation of the Fee’s responsibility to evaluate proposed State support measures for compliance with different guidelines of EU inside market legislation, and the consequences of the related approval selections.
One such case was NFŠ (C-28/23, EU:C:2024:893), the place the Courtroom was requested to verify that consideration of compliance with the EU procurement guidelines as a part of the evaluation of the authorized construction of the State support measure needs to be binding on nationwide courts, the place the Fee included a paragraph on such compliance that, on the very least implicitly, indicated that the Fee had been happy that there was no breach.
As I criticised (see right here, together with the related disclaimer), regardless of the AG Opinion stressing that, having been offered with the related info on the method to complying with the relevant procurement guidelines, ‘the Fee couldn’t have failed to look at whether or not the shape through which the general public support granted … was structured masked the existence of a public contract which ought to have been put out to tender’ (and thus breached the relevant procurement guidelines), the ECJ fudged its reply. The ECJ merely acknowledged that implicit assessments of compatibility with EU inside market guidelines (in that case the procurement guidelines) couldn’t be binding on nationwide courts.
(Un)surprisingly, evidently this was not a one-off state of affairs, or the top of the difficulty.
Within the more moderen Judgment of 23 January 2025 in Neos v Ryanair (C‑490/23 P, EU:C:2025:32), the ECJ was confronted with arguments on whether or not the European Fee was obliged to explicitly assess (and supply causes for its views on) the compatibility of a State support measure with Artwork 56 TFEU.
It’s price reproducing the related paragraphs in full:
56 … as is evident from the case-law …, the process below Article 108 TFEU must not ever produce a outcome which is opposite to the particular provisions of the FEU Treaty. Accordingly, State support which, as such or by motive of some modalities thereof, contravenes provisions or common ideas of EU legislation can’t be declared appropriate with the inner market.
57 Within the current case, it have to be discovered, first, that whereas the choice at situation … features a detailed examination of the compatibility of the minimal remuneration requirement solely within the gentle of Article 8 of the Rome I Regulation, that nonetheless doesn’t present, as Neos has accurately noticed, that that’s the solely provision of EU legislation which the Fee thought of as related for that examination. Certainly, in … the choice at situation, the Fee concluded that the minimal remuneration requirement was prima facie compliant with the Rome I Regulation and that it didn’t ‘represent a breach of different provisions of Union legislation’.
58 Second, … the Fee’s obligation to state causes doesn’t in any occasion imply that it should in each case justify the absence of an specific examination of the compatibility of an support measure within the gentle of sure provisions or sure ideas of EU legislation aside from the State support guidelines and, subsequently, give its view on their relevance for the aim of such an examination.
59 Certainly, given the extraordinarily giant variety of provisions and ideas of EU legislation which may be infringed by the grant of support, the Fee can’t be required, with out undermining the effectiveness of the process below Article 108 TFEU, and even the chance to take a choice in favour of support after the preliminary examination section referred to in Article 108(3) TFEU, and thus with out initiation of the formal investigation process, to supply particular reasoning regarding every considered one of them, and, within the current case, so far as considerations Article 56 TFEU.
60 In that respect, it needs to be held, having regard to the need to take account of the context for the aim of assessing the duty to state causes … {that a} choice declaring an support measure to be appropriate with the inner market within the framework of a process below Article 108 TFEU means, specifically whether it is obvious, as within the current case, from the Fee’s assertion of causes that it has assessed the help measure involved within the gentle of these provisions or ideas, that the latter establishment has taken the view that these provisions and ideas had been both not related with respect to that measure or, in any occasion, had not been infringed.
61 It follows from the foregoing that the Normal Courtroom additionally erred in legislation find … that the Fee had infringed its obligation to state causes in that it had not defined why the one related provision, aside from Articles 107 and 108 TFEU, within the gentle of which it needed to study the compatibility of the minimal remuneration requirement, was Article 8 of the Rome I Regulation and never, specifically, Article 56 TFEU.
Prof Nicolaides has already astutely criticised this method by the ECJ, stressing that
The statements of the CJEU in paragraphs 58 to 60 didn’t cite any case legislation. Certainly evidently it was the primary time that the CJEU handled the extent of the examination by the Fee of different provisions of EU legislation. The CJEU missed a chance to supply extra detailed steerage on what the Fee ought to look at, given the absoluteness of the precept that State support might not be declared appropriate with the inner market if it infringes different provisions of EU legislation.
It might be unreasonable to count on the Fee to scan the entire of EU legislation each time it assesses the compatibility of State support. However that’s definitely not needed. On this sense, the CJEU carried out a logical trick by organising an irrelevant benchmark to justify why the Fee was not obliged to hold out an exhaustive examination of EU legislation. The CJEU may have laid down common standards or may have recognized the facets and modalities which may be thought of to be indissoluble from an support measure, with out laying down hermetic guidelines.
I’d add that this creates a really unusual method to the consequences of implicit assessments by the European Fee of compatibility of State support measures with the EU inside market guidelines. On the one hand, implicit assessments suffice for the Fee to discharge its duties to make sure that ‘the process below Article 108 TFEU must not ever produce a outcome which is opposite to the particular provisions of the FEU Treaty’ (Neos v Ryanair, para 56) whereas, on the similar time, ‘assessments which could implicitly comply with from a choice of that establishment regarding State support can not, in precept, be binding on the nationwide courts in a dispute … which is unrelated to the compatibility of that support with the inner market’ (NFŠ, para 59).
Fairly how this may be squared with authorized certainty and doctrines on the safety of reputable expectations is difficult for me to see, particularly as it’s laborious for me to know what the Courtroom means (in several judgments) by compatibility with the inner market (which appears to generally be a broad and generally a really slim idea).
Extra to comply with?
