State aid: Commission adopts new Notice on the enforcement of State aid rules by national courts

The European Commission has adopted a new Notice on the enforcement of State aid rules by national courts (the ‘Enforcement Notice’). The new Enforcement Notice replaces the 2009 Enforcement Notice, providing updated practical information on the enforcement of State aid rules at national level. Since the 2009 Enforcement Notice, the case law of the Union Courts and the regulatory framework for State aid have evolved. The Commission therefore decided that it was necessary to adopt a new Notice whose main purpose is to offer updated guidance to national courts when they apply these rules and to encourage knowledge sharing and closer cooperation with the Commission through dedicated tools, namely requests for information, opinions and amicus curiae observations. Enforcement is a central element of State aid control. Both the Commission and national courts have competences in enforcing State aid rules and good cooperation between them is essential. In particular, national courts must take all appropriate actions, in accordance with their national law, to address the consequences of an infringement of Member States’ obligation not to implement any new planned State aid unless it has been approved by the Commission or exempted from notification (so-called ‘stand-still obligation’). Since the 2009 Enforcement Notice, under the Commission’s State aid modernisation agenda, more possibilities have been introduced for the Member States to grant aid without prior Commission scrutiny, including due to the extension of the scope of exemptions from the obligation to notify planned State aid to the Commission. As a result, the amount of aid granted on the basis of block exemptions has increased, while the role of national courts in ensuring compliance with State aid rules has become even more prominent. The New Enforcement Notice takes stock of the results of the 2019 Study on the enforcement of State aid rules and decisions by national courts, which offered a comprehensive overview of the enforcement of State aid rules by national courts in the EU and highlighted the need to improve cooperation with the Commission. The New Enforcement Notice takes into account comments received in a public consultation that ended in April 2021.