Application of State Aid Law in National Courts
On July 4th, LEGSA held a international conference on the application of State aid law in national courts. The conference has addressed the specific role played bij national judges in the implementation of State aid law, as well as the possible legal problems that may arise in national legal proceedings.
After an inspiring introduction by Conor Quigley QC and panelists Humbert Drabble and Birgit Haslinger, the participants discussed about the qualification of state aid. The jurisprudence of the European Court of Justice (ECJ) is of great interest when it comes to qualifying a measure as state aid. This qualification is particularly a legal qualification.
The Commission may - in its assessment of art. 107, paragraph 1, TFEU - assume relatively easy that a measure distorts the competition and trade between Member States. One of the questions raised by the participants was whether national judges can expect parties to elaborate the distortion of the internal market and competition with more substantive facts and details. A more substantive argumentation can prevent parties form invoking farfetched state aid claims.
The discussion on the use of soft law was introduced by Dr. Martin Kohler and by panelists Kelyn Bacon and Prof. Dr. Gunter Herzig. An urgent question is whether soft law provides a balance between guidance for national judges and (political) control by the Commission. Although judges aren't bound by soft law, you can wonder whether judges depart from the use of soft law in such a complex legal area (in which they might have little experience). Most of the participants argued that the existing soft law can be useful for national judges, even though this soft law contains a strong political load.
Finally, after an introduction by Professor Arjen Meij and contributions from panelists Thomas Jestaedt and Ruud Winter, the relationship between the national courts and the European Commission was discussed. During the conference, the most attention was paid to the opinion by Advocate General Mengozzi in the Deutsche Lufthansa AG case, which was published a few days before the conference. The question raised whether this opinion of the Advocate General is that conflicting judgments can be avoided, although this will differ whether the case concerns notified of non-notified state aid. The judgment of the ECJ was not yet known during the conference. In the meantime, the judgment has been published (case C-284/12).
Obviously, attention was paid to the possibility for national judges to ask questions to the Commission. National judges seem to make less use of this possibility than expected. It is essential for judges that the Commission answers this question as detailed as possible. In addition, parties should have - within the national procedure - an opportunity to response to the answers of the Commission. Such procedural safeguards are seen as necessary: the Commission answers the questions of the judge without involving the statement of parties.