C-39/94

SFEI AND OTHERS

OPINION OF ADVOCATE GENERAL JACOBS delivered on 14 December 1995 *

1. In the present case the Tribunal de Com­ Française de Messagerie Internationale merce, Paris, seeks a preliminary ruling from (SFMI), in order to provide an express deliv­ the Court on a series of questions concern­ ery service. The holdings of Sofipost and ing, in particular, the powers of national TAT in SFMI were 66% and 34 % respec­ courts in proceedings brought by competi­ tively. SFMI carried on the business under tors of an undertaking to which unnotified the trade mark 'Chronoposť. State aid is alleged to have been granted. The questions have arisen in the context of pro­ ceedings brought by the Syndicat Français de l'Express International (SFEI) and a number of express delivery undertakings against the French Post Office and others.

4. Under the new structure Chronopost SA 1992 inter alia on the ground that the Com­ acts as a service provider and agent for SFMI mission's letter had no legal effects. The by collecting and distributing in France par­ applicants appealed to the Court of Justice 1 cels sent through the GD Express World­ which, by a judgment of 16 June 1994, wide network. Pursuant to agreements quashed the judgment of the Court of First reached at the time when GD Express Instance and referred the case back to it. The Worldwide was created, Chronopost could Commission subsequently withdrew the let­ not compete with SFMI and was its exclusive ter, and the Court of First Instance, by an agent until 1 January 1995; in addition, the order of 3 October 1994, held that it was French Post Office granted SFMI (and hence unnecessary to rule on the case. The Com­ in effect Chronopost SA) exclusive access to mission adopted a further decision closing the postal network until that date. the Article 86 inquiry on 30 December 1994, which is the subject of Case T-77/95, cur­ rently pending before the Court of First Instance.

— to declare that the logistical and commer­ cial assistance afforded by the Post Office to SFMI and Chronopost without proper consideration constitutes State aid within — to order that SFMI should repay the Post the meaning of Article 92 of the Treaty; Office all unlawful State aid received since it was set up, amounting to FF 2 139 000 000 for the period from 1986 to 1991; and

— to declare that the aid is unlawful on the ground that it was not notified to the Commission under Article 93(3) of the Treaty; — to order the defendants to pay the plain­ tiffs damages of FF 216 000 000.

— to declare that the defendants have per­ formed acts of unfair competition;

9. The defendants contended inter alia that the national court should decline jurisdiction in favour of the Commission or alternatively in favour of the French administrative — to declare that the Post Office, Sofipost, courts. SFMI and Chronopost have abused their dominant position within the meaning of Article 86 of the Treaty;

10. The order for reference does not set — to hold that the defendants have out the factual background to SFEľs claim infringed the principle of equality in that the Post Office has unlawfully granted competition; aid to SFMI and Chronopost. In its written

I - 3553

SFMI benefits from promotional and adver­ tising campaigns undertaken by the Post '1 . Must measures taken by a Member State Office.' consisting inter alia in the grant,

I - 3554

SFEI AND OTHERS

through the Ministry of Economic 4. If Question 3 is answered in the affir­ Affairs and the Ministry of Posts and mative, must the damage suffered by the Telecommunications of that Member undertakings competing with the under­ State, of subsidies to an express courier taking that receives the aid as a result of company by giving it logistical and the latter's lack of due diligence also be commercial assistance and refraining compensated for in accordance with the from asking for the normal payment in rules of national law in order to remedy return for its technical, commercial or the breach of the provisions of Commu­ financial services, be regarded as State nity law at issue? aids which distort or threaten to distort competition and affect trade between Member States within the meaning of Article 92 of the Treaty?

I - 3555

OPINION OF MR JACOBS — CASE C-39/94

whether the contested measures are The Treaty rules on State aid and the role of State aids? national courts

7. Is the situation described in 5 and 6 affected by the fact that the Commis­ 14. Before turning to the national court's sion has not yet given a ruling even questions it may be helpful to summarize the though the matter was referred to it Treaty rules on State aid and the respective more than a year ago and that the plain­ roles of the Commission and national courts tiff has satisfied the national court of the in ensuring enforcement of those rules. urgent need to bring to an end the harmful consequences for it of the infringement of the last sentence of Article 93(3)?

15. Article 92(1) of the Treaty provides:

17. Under Article 93 the main responsibility the procedure provided for in paragraph 2. for ensuring that Article 92 is observed lies The Member State concerned shall not put with the Commission. The latter has exclu­ its proposed measures into effect until this sive competence, subject to review by the procedure has resulted in a final decision.' Court, to determine whether aid is compati­ 2 ble with the common market. Article 93(1) and (2) deal with existing aid. Article 93(1) requires the Commission 'to keep under constant review all systems of aid' existing in the Member States. Under Article 93(2) the Commission, after giving notice to the par­ ties concerned to submit their comments, may, if it finds that the aid is incompatible 19. Thus the prohibition on the putting into with the common market, adopt a decision effect of aid applies throughout the period requiring the State concerned to abolish or during which the Commission makes its pre­ alter it within a specific period of time. If the liminary examination of the aid and, if the State does not comply with the Commis­ Commission decides to open the procedure sion's decision, the Commission may refer laid down by Article 93(2), until it reaches a the matter directly to the Court. final decision. The Court has held that, by analogy with Articles 173 and 175 of the Treaty, the preliminary examination must be conducted within a period of two months. If the Commission does not react within that period, the Member State concerned may implement the plan after giving notice to the Commission. The aid is then treated as exist­ 18. Article 93(3) establishes a system for reg­ ing aid subject to review under Article 93(1) ulating plans to grant new aid or to alter and (2). 3 existing aid. It provides as follows:

'... the principal and exclusive role conferred 22. The primary role of the national courts on the Commission by Articles 92 and 93 of in the sphere of State aid stems instead from the Treaty, which is to hold aid to be incom­ the direct effect of the prohibition, laid down patible with the common market where this by the last sentence of Article 93(3), on the is appropriate, is fundamentally different putting into effect of aid measures before the from the role of national courts in safeguard­ Commission has adopted a final decision. In ing rights which individuals enjoy as a result 5 FN CE the Court held: of the direct effect of the prohibition laid down in the last sentence of Article 93(3) of the Treaty. Whilst the Commission must examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the pro­ hibition on giving effect to aid, national '... the validity of measures giving effect to courts do no more than preserve, until the aid is affected if national authorities act in final decision of the Commission, the rights breach of the last sentence of Article 93(3) of of individuals faced with a possible breach the Treaty. National courts must offer to by State authorities of the prohibition laid individuals in a position to rely on such a down by the last sentence of Article 93(3) of breach the certain prospect that all the neces­ the Treaty. When those courts make a ruling in such a matter, they do not thereby decide

4 — Case 77/72 [1973] ECR 611, paragraph 6 of the judgment. 5 — Cited at note 2, paragraph 12 of the judgment. 6 — Cited at note 2, paragraph 14 of the judgment.

28. Fourthly, the preliminary ruling pro­ cedure is being abused in order to overcome the obstacle of the Commission's delay in 25. First, in France it is the administrative adopting a decision. The first question asks courts and not the commercial courts which in effect not only whether the measures in are competent to review the legality of question constitute aid but also whether they administrative acts by which aid is paid. are incompatible with the common market, a Moreover, the latter do not have the power matter falling exclusively within the Com­ to order repayment of aid or to award dam­ mission's jurisdiction. The appropriate ages against the State. Since the Tribunal de Commerce manifestly lacks jurisdiction, the questions submitted are not necessary for the 7 — Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and determination of the dispute. Others [1993] ECR 1-393.

I - 3559

OPINION OF MR JACOBS — CASE C-39/94

course would be for the plaintiffs to institute that the reference was inadmissible because proceedings against the Commission either the national court did not have jurisdiction for failure to act or for annulment of a in tax matters, refusal to initiate the consultation procedure under Article 93(2).

'... it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their pro­ 29. The French Government merely chal­ cedure. lenges the admissibility of the first question referred by the Tribunal de Commerce. It contends that the referring court does not set out the factual or legal considerations which have led it to the conclusion that SFMI and Chronopost have received advantages for an The Court must therefore abide by the abnormally low consideration. According to decision from a court of a Member State the French Government, the inadmissibility requesting a preliminary ruling in so far as it is particularly clear given the extremely com­ has not been overturned in any appeal proce­ plex factual issues raised. dures provided for by national law.'

35. In the present case the order for refer­ ence sets out in detail the claims made by the parties to the main proceedings, in particular 34. Although it is helpful if the national the relief sought by the plaintiffs and the court provides a succinct description in its defendants' contentions concerning the order for reference of the context in which national court's jurisdiction. It seems to me its questions have arisen, the practice of the that those details were sufficient to enable Court has been to reply to questions even in those submitting observations to take a pos­ the absence of such a description where it ition on Questions 2 to 9 and for the Court has been possible to do so on the basis of the to give a worthwhile reply to the national information provided by the case-file and the 9 court. I therefore consider that the French observations submitted to the Court. Nev­ Government correctly confines its doubts ertheless in a number of recent cases, notably 10 about admissibility to Question 1. Telemarsicabruzzo, Banchero, 11 Monin 12 13 Automobiles, La Pyramide and Saa- 14 dik, the Court has refused to answer ques­ tions where it felt that the issues of Commu­ nity law upon which guidance was sought were not sufficiently well defined to allow it to give the national court a worthwhile reply. In those cases the Court emphasized the 36. As far as Question 1 is concerned, I need for the national court, particularly in think it is important to bear in mind the pur­ cases involving complex factual and legal pose of the question. At the present stage of issues such as those concerning competition the proceedings the national court's main law, to define the factual and legislative con­ aim is to verify whether it should proceed text of the questions or, at the very least, to with the case notwithstanding the fact that explain the factual circumstances on which the matter has been referred to the Commis­ those questions are based. The Court also sion and to seek guidance on the appropriate stressed its own duty to ensure that those remedies in the event of its finding that aid has been granted unlawfully. By its first question the national court merely seeks a ruling, before commencing its inquiry into 9 — Sec, for example, Case C-316/93 Vaneetveld [1994] ECR I-763, in particular paragraph 14 of the judgment. the facts, on the basic issue of whether the 10 — Cited at note 7. 11 — Case C-157/92 [1993] ECR I-1085. 12 — Case C-386/92 [1993] ECR I-2049. 13 — Case C-378/93 [1994] ECR I-3999. 15 — Saddik, cited at note 14, paragraphs 12 and 13 of the judg­ 14 — Case C-458/93 [1995] ECR I-511. ment.

37. The third contention of TAT and SFMI is also unfounded. While it may be conve­ nient, depending on the circumstances, for the facts of the case and questions of national 39. The fourth contention concerning law to be settled before a ruling is sought, it admissibility is also unfounded. The national is ultimately a matter for the discretion of court is not asking the Court to usurp the the national court to decide at what stage in role of the Commission by ruling on the the proceedings a ruling must be sought, compatibility of the measures in question having regard to considerations of proce­ with the common market. Its purpose is to 16 dural organization and efficiency. In any obtain guidance on whether the measures are event, as already noted, the national court's capable of constituting aid within the mean­ decision to seek a ruling appears justified in ing of Article 92(1) of the Treaty which the light of the defendants' pleas contesting should have been notified to the Commis­ its jurisdiction. sion under Article 93(3). As I shall explain below, the national court's role of ensuring enforcement of the prohibition on the put­ ting into effect of unauthorized aid presup­ poses that it should be able to rule on the existence of notifiable aid. The existence of a possible right of action against the Commis­ sion does not preclude proceedings before the national courts based on the last sentence 38. Contrary to the view of TAT and SFMI, of Article 93(3). Such a view would be the fact that a national court bases its inconsistent with the direct effect of that provision. Moreover, the remedies available in national courts may well go further and be 16 — See Joined Cases 36/80 and 71/80 Irish Creamery Milk Sup- more effective than those against the Com­ pliers Association v Ireland [1981] ECR 735, paragraphs 6 to 8 of the judgment. mission.

Substance 42. SFEI, the French and Spanish Govern­ ments and the Commission contend that the national court has jurisdiction to entertain and rule upon an application based on an infringement of Article 93(3) notwithstand­ ing the fact that the matter has been referred 40. Since Questions 5 to 8 concern the issue to the Commission. of the national court's jurisdiction and whether it may proceed with the case not­ withstanding the Commission's inquiry, it seems appropriate to consider them before Questions 1 to 4, which concern the notion 43. TAT argues that, where the Commission of aid and the remedies to be granted in the has been seised of the matter but has yet to event of a breach of the last sentence of Arti­ decide whether the measures in question cle 93(3). constitute State aid, the national court should decline jurisdiction since its decision might otherwise conflict with that of the Commis­ sion. If the Commission subsequently decided that the measures did not constitute Questions 5 to 8 State aid, the national proceedings for recov­ ery of the aid based on Article 93(3) would be deprived of any legal foundation. TAT argues in the alternative that the national court should be obliged to stay the proceed­ ings pending the Commission's decision on the question whether the measures constitute 41. By these questions guidance is sought on aid. Finally it argues that, if the measures do whether a national court hearing an applica­ constitute aid, they should be considered tion based on Article 93(3) must decline existing aid owing to the abnormally long jurisdiction where a complaint has been sub­ period required by the Commission to reach mitted to the Commission (Question 5) or a decision. must stay proceedings until the Commission decides whether the measures in question constitute State aid (Question 6). The Tribu­ nal de Commerce asks further whether it makes any difference that the Commission has been examining the complaint for more 44. As I have already explained, the role of than a year and the plaintiff has demon­ the national courts in the event of aid being strated the urgency of the matter (Question granted in breach of the last sentence of 7). It asks finally whether, by declaring itself Article 93(3) is to preserve the rights of indi­ to have jurisdiction and giving the ruling viduals pending the Commission's final sought, it is not merely fulfilling the role, decision. It is clear that in order to perform assigned to it by the Court in FNCE, of safe­ that role they must be able to decide whether guarding the rights of individuals against the the measures in question constitute aid State's failure to observe Article 93(3) pend­ granted in breach of that provision and, if so, ing the Commission's final decision (Ques­ to grant appropriate remedies. Thus the tion 8). It is convenient to consider those Court has held that the competence of the questions together. Commission in matters of State aid does not

45. TAT suggests that the fact that the national courts share competence with the Commission to interpret and apply the con­ cept of aid may lead to conflicting decisions. In particular there is the danger that a national court might grant remedies in pro­ ceedings based on the last sentence of Article 93(3) in respect of measures which are subse­ 47. In Delimitis 21 the Court was asked to quently found by the Commission not to rule on the jurisdiction of a national court to constitute aid. apply Article 85 in the case of an agreement which did not enjoy the protection of an exemption regulation. The Court held that the national court could give judgment on the agreement in issue where the conditions for the application of Article 85(1) were clearly not met or, conversely, where the incompatibility of the agreement with Arti­ cle 85(1) was beyond doubt and, in the light 46. As the French Government has of the exemption regulations and the Com­ observed, an analogous problem arises in the mission's previous decisions, the agreement context of Article 85 of the Treaty. Article could on no account be exempted under 85(1) renders certain agreements between Article 85(3).

17 — Sec Steinike und Weinlig v Germany, cited at note 2, para­ 19 — See Article 9(1) of Regulation No 17: first Regulation graph 14 of the judgment. Sec also Case C-189/91 Kirsam- implementing Articles 85 and 86 of the Treaty, OJ, English mer-Hack v Nurhan Sidal [1993] ECR 1-6185, paragraph Special Edition, 1959-62, p. 87. 14. 20 — Case 127/73 BRT v SABAM [1974] ECR 51. 18 — Sec Lorenz v Germany, cited at note 3, paragraph 8 of the judgment. Secealso FNCE, cited at note 2, in particular 21 — Case C-234/89 [1991] ECR I-935, paragraphs 43 to 55 of paragraphs 10 and 11. the judgment.

51. Where a national court entertains doubts on the matter, it may in my view request the Commission, in accordance with the applica­ ble national procedural rules and subject to Article 214 of the Treaty, to inform it of the state of any procedure which the Commis­ 23 sion may have set in motion. Subject to the same conditions, the national court may also 49. The analogy is not complete because in seek such guidance on the factual and legal the context of State aid a national court can­ issues involved as the Commission is able to not take a decision on the legality of aid but supply. It may be observed that in its only on the legality of its implementation.

23 — Sec also the Opinion of Advocate General Lenz in Case C-44/93 Namur — Les Assurances du Crédit v OND 22 — Cited at note 19. [1994] ECR 1-3829, paragraphs 103 and 104.

I - 3565

OPINION OF MR JACOBS — CASE C-39/94

24 — Notice on cooperation between national courts and the Commission in the State aid field (95/C 312/07), OJ 1995 C 312, p. 8. 25 — Cited at note 3.

I - 3566

SFEI AND OTHERS

Question 1 positive benefits, such as subsidies them­ selves, but also interventions which, in vari­ ous forms, mitigate the charges which are normally included in the budget of an under­ taking and which, without, therefore, being subsidies within the strict meaning of the word, are similar in character and have the 56. By this question the national court asks same effect.' whether the grant by the State, through a public body, of subsidies to an express cou­ rier company by giving it logistical and com­ mercial assistance without asking for the normal payment for its services constitutes aid which distorts or threatens to distort competition and affects trade between Mem­ ber States within the meaning of Article 92 of the Treaty.

I - 3567

OPINION OF MR JACOBS — CASE C-39/94

59. It added that the preferential tariff by prospects of profitability in the longer would not constitute aid: term.

I - 3568

SFEI AND OTHERS

62. It seems clear that in the circumstances last sentence of Article 93(3) does not consti­ of the present case the measures, if found to tute the only means of guaranteeing the constitute aid, would distort or threaten to effectiveness of such a prohibition. distort competition by favouring certain undertakings for the purposes of Article 92(1). They would also affect trade between Member States. As the Court held in Philip 35 Morris v Commission:

65. Different views were expressed on this issue. SFEI, referring to the judgment in 36 FNCE, contends that, save in exceptional cases such as that of absolute impossibility, 'When State financial aid strengthens the the national court must restore the competi­ position of an undertaking compared with tive position by ordering repayment of the other undertakings competing in intra- aid, together with interest. Merely ordering Community trade the latter must be suspension of payment would only have regarded as affected by that aid.' effects for the future and would not be suf­ ficient to dissuade Member States from put­ ting aid into effect without prior notification.

judgment in France v Commission, TAT 68. The Spanish Government suggests that observes that the Commission is not obliged breach of the notification obligation in Arti­ to order repayment of aid and has the power cle 93(3) may give rise to interim measures, to do so only after it has adopted its final of which the most severe is suspension of the decision on the existence and legality of the payment of the aid; repayment of aid may aid. It would be inconsistent to preserve the not be ordered until it is established that a rights of the Member States vis-à-vis the measure constitutes aid that is incompatible Commission while allowing national courts with the common market. To require repay­ to ignore the procedural guarantees provided ment of aid before it has been declared for by Community law. incompatible with the common market would be tantamount to applying Arti­ cle 93(2) before the conditions laid down therein have been fulfilled. Moreover, since recovery of aid is not a necessary conse­ quence of a finding that the aid is incompat­ ible with the common market, it cannot a fortiori constitute the consequence of a pro­ cedural illegality before the substantive examination has been carried out. Measures adopted by the national courts in such cir­ cumstances must not prejudge the outcome of the substantive examination, as would be 67. The French Government observes that the case if repayment were ordered. The the consequences flowing from infringement Spanish Government's view is shared by the of the last sentence of Article 93(3) depend on the nature of the proceedings and the German Government. court before which they are brought. In pro­ ceedings based on excess of powers a French administrative court can annul the contested measure but cannot expressly order recovery of aid, although annulment of the measure will in principle entail an obligation to repay the aid. A civil or commercial court may order various measures, including suspension of payment and recovery of all or part of the aid. The French Government considers that the national court should adopt the measure which is most appropriate in the circum­ stances. National courts are only obliged to 69. The Commission refers to the judgment order repayment if that is the only measure in FNCE in support of the view that national capable of restoring the competitive position. courts have the power to order recovery of It adds that the Commission is itself not aid paid in breach of Article 93(3). The obliged to order repayment of aid which it Commission, referring to the judgment in has found to be incompatible with the com­ 38 Factortame I, contends further that mon market. national courts also have the power to order,

by way of an interim measure, that payment 71. The Spanish and German Governments' of the aid be suspended. view that in proceedings based on the last sentence of Article 93(3) national courts may do no more than order suspension of pay­ ment of aid is plainly inconsistent with that ruling. Measures implementing aid in the period before the Commission adopts its 70. It seems to me to be clear from the judg­ final decision are unlawful and remain so in ment in FNCE that a finding that aid has respect of that period, even where the Com­ been granted in breach of the last sentence of mission finds the aid to be compatible with Article 93(3) should in principle lead to its the common market. Such a decision autho­ repayment in accordance with the proce­ rizes implementation of aid with prospective dures laid down by national law. In that effect only and in doing so may impose con­ judgment the Court held that national courts ditions which alter its effects. Contrary to must offer individuals relying on a breach of the Spanish Government's view, the role of a that provision 'the certain prospect that all national court in proceedings based on the the necessary inferences will be drawn, in last sentence of Article 93(3) goes beyond accordance with national law, as regards the that of a judge hearing an application for validity of the measures giving effect to the interim measures; by its final judgment in aid, the recovery of financial support granted such proceedings it is under an obligation to in disregard of that provision and possible provide permanent remedies for the effects 39 interim measures.' The Court added that of the unlawful implementation. By doing so 40 its finding in France v Commission and it does not in any way prejudge the Com­ 41 Belgium v Commission that the Commis­ mission's final decision on the legality of the sion could not declare aid illegal solely on aid. the ground that it had not been notified to the Commission, and without investigating its compatibility with the common market, did not affect the obligations of the national court deriving from the direct effect of the 42 last sentence of Article 93(3). It held fur­ ther that a subsequent decision by the Com­ mission finding aid compatible with the common market could not have the effect of regularizing ex post facto implementing mea­ sures which were invalid on account of non­ notification; the Court reasoned that any other interpretation would favour non- observance by a Member State of the prohi­ bition in Article 93(3) and would deprive 72. The view that a finding of illegality 43 that provision of its effectiveness. should normally entail repayment is consis­ tent with the Commission's practice of requiring repayment when it finds that aid is unlawful. By ordering repayment a national 39 — Paragraph 12. court complements the role of the Commis­ 40 — Cited at note 37. 41 — Case C-142/87 [1990] ECR I-959. sion by safeguarding the rights of competi­ 42 — Paragraph 13 of the judgment. tors pending the Commission's decision. 43 — Paragraph 16 of the judgment. Where a competitor institutes proceedings

73. Nevertheless the Court has held that there may be exceptional cases in which it would be inappropriate to order repayment of aid. In RSV v Commission 44 the recipient of unnotified aid successfully challenged the Commission's decision ordering recovery in '... a recipient of illegally granted aid is not proceedings under Article 173 of the Treaty. precluded from relying on exceptional cir­ The Court held that an unexplained cumstances on the basis of which it had 26-month delay on the part of the Commis­ legitimately assumed the aid to be lawful and sion in adopting its decision on the legality thus declining to refund that aid. If such a of the aid conferred a legitimate expectation case is brought before a national court, it is on the recipient of the aid which prevented for that court to assess the material circum­ the Commission from requiring the Nether­ stances, if necessary after obtaining a prelim­ lands authorities to order repayment. inary ruling on interpretation from the 46 Court of Justice.'

45 74. In Commission v Germany the Court indicated that in certain cases it might fall to the national courts to appraise whether there 75. It seems to me that the national courts were exceptional circumstances preventing have a similar responsibility in proceedings recovery of aid. In that case the Court noted based on the last sentence of Article 93(3). It that an undertaking to which aid was granted is for national courts to assess whether a dil­ could not, in principle, entertain a legitimate igent businessman ought to have realized expectation that aid was lawful unless it had that the measures in question constituted aid been granted in accordance with the pro­ which could be granted only in accordance cedure laid down in Article 93(3); a diligent with the procedure laid down by Article 93m.

79. Only SFEI gives an affirmative answer to both questions, putting forward arguments based on the direct effect and supremacy of 77. Finally, it may be noted that in some Community law, the effectiveness of Article cases repayment of aid already granted may 93(3), the case-law on legitimate expectations not be a wholly adequate response to a and the practicality of its view. TAT, the breach of the prohibition in the last sentence French, German and Spanish Governments of Article 93(3), in particular where the aid and the Commission all reject the idea that has resulted in a loss of profits and market as a matter of Community law there is a share for competitors. However, recovery of duty of diligence on the part of the recipient aid is not — to recall the terms of the of aid giving rise to liability in damages. The national court's second question — the only Commission considers however that the pre­ means of guaranteeing the effectiveness of sumption that the recipient has knowledge of that prohibition. As the Commission sug­ the illegality of the aid may give rise, under gests, the State may also — and indepen­ the principle of equal treatment of claims dently of any obligation to recover the aid — based on Community law, to liability under be subject to claims for damages brought in national rules on liability. The Spanish Gov­ the national courts on the basis of Commu­ ernment also considers that an action may lie nity law by competitors who incur loss or against the recipient under the national rules damage as a result of measures unlawfully on liability once the incompatibility of the implementing aid. That question has not, aid with the common market and the obliga­ however, been raised in these proceedings. tion to repay the aid has been established.

81. SFEI refers in support of its view to the words of Advocate General Darmon at para­ graph 19 of his Opinion in Commission 48 v Germany. There the Advocate General, repeating the view which he had expressed in 49 an earlier Opinion, observed that 'it could be deduced from the philosophy underlying the Court's case-law in the field of the pro­ tection of legitimate expectations that any undertaking receiving aid was under a duty to verify whether prior notification of that aid had been given to the Commission.' It seems to me, however, that that remark must 83. By contrast the need to ensure the effec­ be read in the context in which it was made, tiveness of the prohibition does explain the namely in response to Germany's contention existing case-law. Articles 92 and 93 would that recovery of the aid in question was be rendered ineffective if a Member State impossible owing to the recipient's legitimate were able to plead the legitimate expectations expectations recognized by national law. of the recipient of aid in order to justify fail­ ing to take the necessary steps to ensure its recovery. As the Court observed in Commis- 50 sion v Germany, 'Articles 92 and 93 of the Treaty would be set at naught, since national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission 82. Moreover, I do not think that the Court under provisions of the Treaty of their effec­ should extend its case-law so as to confer on tiveness.' The same reasoning would not support a remedy in damages against the recipient of aid.

(1) The provision by a Member State, through a public body , of logistical and commercial assistance to an international express courier undertaking in which the public body has a direct or indirect holding on financial terms that are more favourable than those which the undertaking could obtain from a com­ parable commercial investor constitutes , in circumstances such as those in the main proceedings , aid which distorts or threatens to distort competition and affects trade between Member States for the purposes of Article 92(1) of the Treaty.

(2) A national court has jurisdiction to entertain proceedings brought on the basis of the last sentence of Article 93(3) notwithstanding the fact that the matter has been referred to the Commission . In such circumstances it may ask the Commission to inform it of the state of the Commission procedure and seek such other legal and factual information as the Commission is able to supply . It should also consider whether it would be appropriate to order interim mea­ sures in accordance with the applicable national procedural rules in order to safeguard the rights of the parties pending final judgment .

(3) Where the competent national court finds that aid has been granted by a Member State in breach of the prohibition in the last sentence of Article 93(3), it should order recovery of the aid in accordance with the applicable proce­ dures of national law. The court should however consider whether there are exceptional circumstances giving rise to a legitimate expectation on the part of the recipient precluding recovery of the aid.