The EU Commission recently published a new notice on the implementation of its decisions ordering the recovery of state aid (the recovery notice). The recovery notice is far more detailed than the 2007 notice which it replaces and reflects recent developments in EU Commission practice, including by providing more detail on tax state aid cases. For example, the recovery notice provides new detailed guidance on issues including:

  • the quantification of the state aid to be recovered;
  • the identification of state aid beneficiaries; and
  • the primacy of EU state aid law, in the context of potential allegations of conflict with national law, which in particular mean that:
    • member states must perform acts which would be time barred under national law in order to effect state aid recovery; and
    • confidentiality is an invalid reason for withholding documents during a state aid investigation or recovery case.

The draft recovery notice was subject to public consultation earlier in 2019. While the final recovery notice remained largely the same as the draft, there were calls for the draft guidance to be more explicit and to improve on the measures available to the commission when engaging with member states as part of a recovery process. More specific comments centred on:

  • the principle of sincere cooperation;
  • kick-off meetings;
  • the identification of the aid beneficiaries; and
  • the quantification of the amount to be recovered.(1)

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

Endnotes

(1) For information on the EU Commission's recent study please see "EU Commission issues study on enforcement of state aid rules and decisions by national courts" and for information on Irish court rulings which elucidate the role of national courts in state aid cases please see "Recent rulings on state aid".