P.C. Adriaanse

Appropriate Measures to Remedy the Consequences of Unlawful State Aid

This analysis deals with the judgment of 12 February 2008 of the European Court of Justice in the CELF/SIDE case and its effects on the enforcement of European State aid law. The Court answered two questions referred to it by the French Conseil d’Etat in an ongoing dispute about French State aid to book export centre CELF. According to the Court, Community law requires a national court to order appropriate measures to remedy the consequences of unlawful State aid. However, Community law does not impose an obligation of full recovery of unlawful aid in the event that the Commission subsequently declares the aid in question compatible with the common market. Are the measures chosen by the Court really appropriate to remedy the consequences of unlawful State aid? This analysis shows that the Court’s judgment could have negative effects on the effectiveness of the enforcement of European State aid law.

Implementation of EU Enforcement Provisions: Between European Control and National Practice

For effective enforcement of its law the EU is to a large extent dependent on the enforcement efforts of the member states. The member states are responsible for the correct and timely application of EU treaties and secondary EU legislation. This dependence is an important reason for the European legislator and European courts to increasingly guide national enforcement. Interesting questions result from this guidance. What exactly is the relationship between EU legislation in the area of law enforcement and national policy and legislation in this respect? How is that legislation implemented, and can patterns be recognized in this? What problems are the national legislator and the national enforcement practice and organisation faced with in this respect? These questions have been dealt with in respect to the Netherlands in a research project carried out in 2006 and 2007 by researchers of Leiden University and Utrecht University. The project was commissioned by the Dutch Justice Ministry’s Research and Documentation Centre. This article presents the main results of this research into the implementation of EU enforcement provisions in the Netherlands.

Public and Private Enforcement of EU State Aid Law

European Union (EU) competition policy is considered to be one of the basic elements of the European economic constitution, originally established by the Treaty on the European Economic Community and now transferred into the Treaty on the Functioning of the European Union (TFEU). The EU competition rules should guarantee fair and undistorted competition, which according to Art. 3.1 (b) TFEU is necessary for the functioning of the internal market. These rules apply to undertakings (Arts. 101–106 TFEU) as well as to Member States (Arts. 107–109 TFEU).

Enforcement of State Aid Law in the Netherlands

After a brief overview of the principles underlying the enforcement of State aid law in the Member States (section 2), we will describe the problems affecting implementation practice in the Netherlands in recent years (section 3). Next, the outlines of the legislative proposal are described (section 4), followed by some remarks on the relationship between Community law obligations and the Dutch principle of legality (section 5). Next, we will examine the proposed changes in the light of the Dutch implementation practice (section 6). We will conclude with some final remarks (section 7).