Universiteit Leiden

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Three courts and one standard

On Thursday 27 October 2016 Alke Metselaar will defend her PhD dissertation ‘Drie rechters en één norm. Handhaving van de Europese staatssteunregels voor de Nederlandse rechter en de grenzen van de nationale procedurele autonomie’ (Three courts and one standard. Enforcement of European state aid regulations before the Dutch courts and the limits of national procedural autonomy’. The defence will commence at 15.00 hrs, in the Academy Building of Leiden University, Rapenburg 73. The Supervisor is Professor W. den Ouden.

Enforcing European state aid law: not just the Commission …

The European state aid regulations curtail the possibilities for Member States to provide financial support to businesses. The European Commission and the national courts are jointly responsible for enforcing these regulations.  The work of the European Commission regularly makes the headlines, like recently in the high-profile decisions ordering the recovery of aid running into billions to the companies Starbucks and Apple.

… but also the Dutch courts

The national courts are also competent and are indeed required to take a firm stance in cases where it appears that the state aid regulations have been breached in some way. The national – and therefore also the Dutch – courts are obliged to guarantee the compliance of the decisions of the European Commission, but where necessary to also attach consequences to a breach of the state aid regulations.  In the enforcement of the state aid regulations, they fulfill - at least on paper - an important role, and this role is becoming increasingly important.

The role of the Dutch courts as outlined above, however, is not easy. For one thing, it is not entirely clear when a measure actually qualifies as state aid.  Uncertainty remains about who should be able to claim protection from the state aid regulations before the Dutch courts, while various parties with differing objectives can appeal to the court dealing with those state aid regulations.  When parties are successful in making a claim under the state aid regulations, the question arises: what are the exact consequences that the court must attach to this? And how should the court deal with a claim that a measure executed by a government authority, contrary to what the government believes, does not fall under the scope of the relevant official approval of the European Commission?

National procedural autonomy

The situation is made even more complicated by the fact that the Dutch courts when applying the European state aid regulations use a European standard, but do so within the scope of national procedural law.  This is the result of the principle of national procedural autonomy: where no European procedural rule exists, disputes with a Union law component are addressed within the ‘standard’ national judicial organisation, according to the procedural law in place and using the available remedies. In the case of a Dutch court confronted with a dispute concerning state aid, this means that it must take account of both the relevant Europea regulations  as well as the national (procedural) context within which it operates. This context can vary a great deal: both the civil court as well as the administrative and tax courts can be required to deal with state aid disputes, also based on various legal relationships.

The research

The PhD research, taking account of more than ten years of legal precedents on Dutch state aid law and against the background of the requirements under Union law and the relevant Dutch (procedural) law, analysed how these courts discharge the role assigned to them in practice. Explicit attention was paid to the requirements these courts place on the interests of the parties, how they assess whether state aid is at stake, the actual consequences they attach to breaches of the state aid regulations and the relationship between the Dutch courts and the European Commission.

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