Additional confusion on obligation of the European Fee to evaluate State help measures’ compatibility with different guidelines of EU inside market regulation (C‑490/23 P) — Find out how to Crack a Nut – Melissas Meals Freedom

The Court docket of Justice has been not too long ago offered with some instances the place a State help measure was argued to have (not) infringed EU inside market regulation and will thus (not) have been authorised by the European Fee. These instances increase the frequent subject of the Fee’s obligation to evaluate proposed State help measures for compliance with different guidelines of EU inside market regulation, and the consequences of the related approval choices.

One such case was NFŠ (C-28/23, Me: C: 2024: 893), the place the Court docket 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 help measure ought 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 hereincluding 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 help 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 inside market guidelines (in that case the procurement guidelines) couldn’t be binding on nationwide courts.

(Un)surprisingly, it appears that evidently this was not a one-off state of affairs, or the tip of the problem.

Within the more moderen Judgment of 23 January 2025 in Neos v Ryanair (C‑490/23 P, Me: 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 help measure with Artwork 56 TFEU.

It’s value reproducing the related paragraphs in full:

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

57 Within the current case, it have to be discovered, first, that whereas the choice at subject … 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 however doesn’t present, as Neos has accurately 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 subject, 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 help measure within the gentle of sure provisions or sure rules of EU regulation aside from the State help 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 rules of EU regulation which may be infringed by the grant of help, the Fee can’t be required, with out undermining the effectiveness of the process beneath Article 108 TFEU, and even the likelihood to take a choice in favour of help after the preliminary examination section referred to in Article 108(3) TFEU, and thus with out initiation of the formal investigation process, to offer 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 ought 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} resolution declaring an help measure to be appropriate with the interior market within the framework of a process beneath 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 rules, that the latter establishment has taken the view that these provisions and rules 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 Common 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, 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 regulation. Certainly it appears that 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 possibility to offer extra detailed steering on what the Fee ought to look at, given the absoluteness of the precept that State help will not be declared appropriate with the interior 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 at any time when it assesses the compatibility of State help. However that’s actually not vital. 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 regulation. The CJEU might have laid down normal standards or might have recognized the features and modalities which may be thought of to be indissoluble from an help 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 help 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 beneath Article 108 TFEU mustn’t ever produce a consequence which is opposite to the particular provisions of the FEU Treaty’ (Neos v Ryanairpara 56) whereas, on the similar time, ‘assessments which could implicitly comply with from a choice of that establishment referring to State help can’t, in precept, be binding on the nationwide courts in a dispute … which is unrelated to the compatibility of that help with the interior market’ (NFŠto 59).

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

Extra to comply with?