Additional confusion on responsibility of the European Fee to evaluate State assist measures’ compatibility with different guidelines of EU inner market regulation (C‑490/23 P) — Easy methods to Crack a Nut – Cyber Tech

The Court docket of Justice has been just lately offered with some instances the place a State assist measure was argued to have (not) infringed EU inner market regulation and may thus (not) have been authorised by the European Fee. These instances elevate the widespread problem of the Fee’s responsibility to evaluate proposed State assist measures for compliance with different guidelines of EU inner market regulation, and the consequences of the related approval selections.

One such case was NFŠ (C-28/23, EU:C:2024:893), the place the Court docket was requested to substantiate that consideration of compliance with the EU procurement guidelines as a part of the evaluation of the authorized construction of the State assist measure must 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 glad 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 data on the method to complying with the relevant procurement guidelines, ‘the Fee couldn’t have failed to look at whether or not the shape wherein the general public assist 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 said that implicit assessments of compatibility with EU inner 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 tip of the problem.

Within the newer 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 assist measure with Artwork 56 TFEU.

It’s value reproducing the related paragraphs in full:

56 … as is obvious from the case-law …, the process below Article 108 TFEU mustn’t ever produce a consequence which is opposite to the particular provisions of the FEU Treaty. Accordingly, State assist which, as such or by purpose of some modalities thereof, contravenes provisions or basic ideas of EU regulation can’t be declared appropriate with the inner market.

57 Within the current case, it should be discovered, first, that whereas the choice at problem … 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 appropriately noticed, that that’s the solely provision of EU regulation which the Fee thought of as related for that examination. Certainly, in … the choice at problem, 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 regulation’.

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 express examination of the compatibility of an assist measure within the gentle of sure provisions or sure ideas of EU regulation apart from the State assist guidelines and, due to this fact, 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 regulation that could be infringed by the grant of assist, 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 call in favour of assist 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 certainly one of them, and, within the current case, so far as considerations Article 56 TFEU.

60 In that respect, it must 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} resolution declaring an assist 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 have 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 Court docket additionally erred in regulation find … that the Fee had infringed its obligation to state causes in that it had not defined why the one related provision, apart 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 regulation. Certainly evidently it was the primary time that the CJEU handled the extent of the examination by the Fee of different provisions of EU regulation. 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 assist might not be declared appropriate with the inner market if it infringes different provisions of EU regulation.

It will be unreasonable to count on the Fee to scan the entire of EU regulation every time it assesses the compatibility of State assist. However that’s definitely not vital. On this sense, the CJEU carried out a logical trick by establishing an irrelevant benchmark to justify why the Fee was not obliged to hold out an exhaustive examination of EU regulation. The CJEU may have laid down basic standards or may have recognized the features and modalities that could be thought of to be indissoluble from an assist measure, with out laying down hermetic guidelines.

I might add that this creates a really unusual method to the consequences of implicit assessments by the European Fee of compatibility of State assist measures with the EU inner 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 mustn’t ever produce a consequence which is opposite to the particular provisions of the FEU Treaty’ (Neos v Ryanair, para 56) whereas, on the identical time, ‘assessments which could implicitly comply with from a call of that establishment referring to State assist can not, in precept, be binding on the nationwide courts in a dispute … which is unrelated to the compatibility of that assist with the inner market’ (NFŠ, para 59).

Fairly how this may be squared with authorized certainty and doctrines on the safety of reliable expectations is difficult for me to see, particularly as it’s arduous for me to know what the Court docket means (in several judgments) by compatibility with the inner market (which appears to typically be a broad and typically a really slim idea).

Extra to comply with?