National substantive and procedural rules
8. Describe any recent developments in substantive or procedural rules under domestic law relating to state aid. Describe also any developments in substantive or procedural rules under domestic law relating to state aid that occurred in the aftermath of the covid-19 outbreak.
Belgium
The recent national jurisprudence in Belgium concerns different aspects of state aid issues: the recovery of illegal aid, the illegality of aid outside any European Commission’s investigation or request of a preliminary ruling before the Court of Justice of the EU.
For instance, Brussels South Charleroi Airport (BSCA) challenged before both the Council of State and the judicial tribunal the decisions of the Walloon Region and Sowaer to recover aid that was the object of the decision of the Commission of 31 October 2014. In a judgment of 27 November 2015, the Council of State declared itself incompetent for the suspension and annulation of a letter of the Walloon Minister in charge of airports addressed to BSCA. The same day, a similar judgment was held on a suspension claim towards the formal notice addressed by SOWAER, the public owner of the infrastructure to BSCA. The Tribunal of First Instance of Namur rendered on 11 October 2016 a first judgment for interim relief considering that the matter was not urgent. Following the judgment of the General Court of 25 January 2018 dismissing the appeal filed BSCA against the Commission’s decision, BSCA withdrew its judiciary claims at the national level as they had lost their object.
In a judgment of 19 October 2012, the Court of Appeal of Brussels assessed whether a Commission decision stating that a public guarantee constituted an illegal and incompatible aids in favour of Forges de Clabecq affected the validity of the loans that were covered by this guarantee. In this case, the Court of Appeal considered that the guarantee did not constitute the determining mobile of the loans, which were never as such put in question by the Commission. Therefore, the loans were not void.
In 2013, the Council of State requested the Constitutional Court’s judgment on the Arco case and, more precisely, on the public guarantee granted to the Arco cooperatives in the light of the principle of non-discrimination. In this case, the Constitutional Court referred in 2015 six questions to the Court of Justice of the EU for preliminary rulings. Meanwhile, the European Commission had declared the Arco guarantee illegal and incompatible. The Court rendered its judgment on the questions submitted by the Constitutional Court on 21 December 2016. First, it stated that the Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit guarantee did not impose on member states the obligation to adopt a scheme to guarantee shares in recognised cooperatives operating in the financial sector such as the Arco one. The Constitutional Court held its judgment on 15 June 2017 on this basis and concluded to the infringement of article 10 and 11 of the Belgian Constitution as the King (the Belgian government in practice) can put in place a system of state guarantee for the reimbursement of the natural shareholders of the capital stakes in accredited cooperatives. Furthermore, the Court of Justice of the EU validated the Commission decision of 2014.
Regarding the impact of the illegality of an aid on the validity of a statutory act, the Constitutional Court held in a judgment of 7 November 2013 in which it stated that due to the primary of European law, it had to annul certain dispositions of the Flemish housing code as it granted illegal aid.
Another case, which was handled by the Tribunal of First Instance of Brussels, concerned the public subsidies granted by the Brussels Region of the public body in charge of collecting and disposal of household waste, the Agence Bruxelles-Propreté. An association of private recycling undertakings and its members challenged the legality of the public subsidies granted between 2007 and 2017 and amounting to €1.5 billion stating that the subsidies were also used for purely economic activities of this public body and the Agence was thus unfairly competing on the commercial market for the collection and treatment of non-household waste (cross-subsidisation). The association of private recycling companies and its members requested the reimbursement of all the aids granted for 10 years, the suspension of the whole public compensation and the end of a public guarantee to the Agence Bruxelles-Propreté for a VAT litigation.
In its judgment of 4 May 2018, the Tribunal held that the claim of the association was not admissible due to a lack of interest and that the claims of the private recycling undertakings were admissible and partly founded. The Tribunal considered that the existence of the separate accounts had not been demonstrated but it rejected the request of reimbursement of the aids granted between 2008 and 2017 on the basis of the necessity of ensuring continuity of public service. Nevertheless, it ordered for the future the suspension of 20 per cent of the subsidy granted by the region. Furthermore, it considered that the damage claim was without object and that the guarantee granted by the region to cover a VAT litigation constituted an existing aid whose recovery of modification could no longer imposed on.
Answer contributed by
Annabelle Lepièce
9. Is there a specific legislative or administrative scheme under national law relating to the application or enforcement of EU state aid rules?
Belgium
There is no specific national provision regarding the application or enforcement of EU state aid rules in Belgium.
Public authorities and jurisdictions directly apply the EU regulations on the matter under procedure. National regulations on state aids, for instance, RDI schemes or investments aid schemes refer explicitly to the relevant EU regulations. There is no compilation of EU state aid rules at national level.
Answer contributed by
Annabelle Lepièce
10. Are there national rules or guidelines relating to the implementation of EU state aid rules, in particular EU guidelines? Check in particular any specific implementation related to covid-19 issues such as implementation of positive decisions of the European Commission with respect to your country.
Belgium
National regulations that are legal basis for the grant of aids refer explicitly to the EU regulation that is relevant, for instance, the Commission Decision approving the regional aids map for Belgium or the EU regulations that constitute the legal basis for the compatibility of a specific aid.
Answer contributed by
Annabelle Lepièce
11. Are there national rules or guidelines relating to the process of applying for, and the granting of, state support?
Belgium
National regulations that are the legal basis for the grant of aid must detail the process of applying for and the granting of aid. In some cases, administrative instructions will detail further the procedure. Furthermore, forms may be published to help the candidate for state support to submit a complete file.
Answer contributed by
Annabelle Lepièce
12. How is the concept of "service of general economic interest" (SGEI) defined on the national level? Did the definition recently lead to disputes, and, if so, how was the dispute adjudicated?
Belgium
In Belgium, the concept of service of general economic interest is similar as under EU law but the notion of public service, which is more commonly used in Belgian law is much broader. In one of the major cases regarding the public financing of public Brussels hospitals, the Belgian authorities considered that hospitals were not undertakings under EU state aid rules. The European Commission stated that they were, but validated their compensation of public service. A judgment of the General Court of 19 December 2012 also concluded that Belgian hospitals were indeed undertakings. The very light Belgian reports on SGEI submitted every two years to the Commission demonstrate sufficiently that Belgian authorities are reluctant to admit the economic nature of certain services.
Answer contributed by
Annabelle Lepièce
13. Do any studies on national enforcement of EU state aid rules exist? If so, describe the main subjects and results of these studies.
Belgium
There is no study on national enforcement of EU state aid rules in Belgium apart from the one prepared for the European Commission and published in July 2019 on the enforcement of state aid rules and decisions by national jurisdiction (kd0219428enn.pdf (europa.eu)). (CMS Belgium (Annabelle Lepièce and Kim Gillade) contributed to the chapter on Belgium.)
The conclusions of the study regarding Belgium were the following:
- many different categories of courts and tribunals (Constitutional Court, administrative and civil jurisdictions) are seised by state aid cases;
- proceedings concern various issues: illegality of a law, recovery of illegal aid, implementation of a negative Commission decision, etc.
- courts are particularly active in referring requests for preliminary rulings or request amicus curiae from the Commission; and
- rather than a legislative instrument of general application, Belgium adopts ad hoc legislations as a follow-up to the Commission decisions imposing the recovery of illegal and incompatible aid (Maribel bis/ter and Excess Profit cases) to deal with recovery problems or simplifying existing enforcement procedures.
Answer contributed by
Annabelle Lepièce
Role of national courts
14. Do all national courts have jurisdiction to apply state aid rules? Or do certain dedicated courts have specific jurisdiction for state aid cases?
Belgium
Belgian national courts must apply state aid rules under the primacy of European law on national law, which is well respected.
There is no specific jurisdiction for state aid cases and the competence would be relating to the act at stake. Indeed, to challenge a statute that is the legal basis of an aid, one must seise the Constitutional Court. If the legal basis of aid is an administrative act, the Council of State is competent. If the aid results from commercial contracts with public undertakings or if the claim is founded on an unfair commercial practice, the judiciary court would have to be seised.
Answer contributed by
Annabelle Lepièce
15. Can the judgment of a national court on a state aid matter be appealed? If so, what grounds of appeal are available, and which court can hear the appeals? Does an appeal of a recovery order entail an automatic suspension of the obligation to recover unlawful aid (not notified) pending the outcome of the appeal?
Belgium
There are no specific procedural rules that apply to national judgments on state aid.
The Code of Judicial Procedure applies on those matters.
A judgment of the tribunal of first instance or the tribunal of commerce may be appealed before the Court of appeal on normal grounds (inadmissibility of the claim, lack of competence, errors of law, errors of fact, lack of motivation, etc).
The Supreme Court is competent to hear appeals against judgments of the State Council.
Judgments of the Constitutional Court may not be appealed.
An appeal is, in principle, not suspensive of a judgment and a judgment ordering the recovery of aid must be executed unless the suspension has been explicitly requested and motivated by the beneficiary of the aid and granted by the tribunal.
Answer contributed by
Annabelle Lepièce
16. Do national courts sometimes confuse the concept of unlawful aid with incompatible aid?
Belgium
In former jurisprudence, national judges misinterpreted in some cases the scope of article 107 (notion of aid) and article 108 (procedure).
For instance, in the Breda case of 1995, the President of the tribunal of commerce of Brussels referred to the term “incompatible aid”, although the decision as such concerned the unlawfulness of an aid based on the infringement of article 108(3) of the TFUE (article 88(3) at that time). It was probably an error of wording.
Nowadays, they tend to have a more accurate assessment of state aid rules.
Answer contributed by
Annabelle Lepièce
17. Do national courts sometimes confuse the concept of new aid with existing aid?
Belgium
In the past, Belgian courts were sometimes not very accurate while assessing the concept of existing aid. For instance, in Namur-Les Assurances du credit v Office National du Ducroire, the Court of Arbitration (which was later replaced by the Constitutional Court) concluded to the existence of an existing aid on the basis that the European Commission had closed an investigation although it had not taken explicitly a position on the qualification of the measure at stake.
Nowadays, the distinction between new aid and existing aid does not raise any specific difficulty in Belgium.
In 2003, the Court of Arbitration (now the Constitutional Court) assessed a tax exemption granted to Belgacom (former Belgian monopolistic telecommunications operator). As the measure had been enacted in 1930, it concluded that it was an existing aid and only the European Commission could declare it incompatible.
In the Agence Bruxelles Propreté case, the tribunal of first instance assessed the concept of existing aid in the context of a guarantee granted formally in 2003 and qualified it accordingly (see question 8).
Answer contributed by
Annabelle Lepièce
18. Do national courts traditionally refer questions regarding the interpretation of EU state aid rules to the Court of Justice? Provide any notable examples of preliminary references made on state aid questions.
Belgium
National courts do not hesitate to refer questions regarding the interpretation of EU state aid rules to the Court of Justice for preliminary rulings.
In 1993, the Court of Appeal of Brussels referred a request for a preliminary ruling to the Court of Justice in Namur-Les Assurances du Crédit v The Office National du Ducroire and the Belgian State. The questions concerned, inter aliae, on the granting or alteration of an aid that could have an impact on the notion of existing aid.
For instance, in the DMP case, the Belgian Tribunal of Commerce asked the Court of Justice if very favourable terms granted by the public body in charge of the social security to a company in difficulty for its social debts could be qualified as state aid. In that case, the Court of Justice did confirm that the social security should behave such as a private creditor. More recently, in 2015; the Constitutional Court submitted six questions to the Court of Justice in the Arco case (see answer to question 8).
In May 2018, the tribunal of first instance of Brussels submitted three questions to the Court of Justice concerning the recovery of fiscal aid to Tekelec International in the context of the Belgian Excess Profit tax scheme case. As the Commission decision on the Belgian Excess Profit tax scheme case was annulled on 14 February 2019 by the General Court and the recovery procedure was no longer justified, the preliminary procedure was removed from the register on 13 April 2019.
No preliminary request on a state aid issue has been lodged by a Belgian jurisdiction or answered by the Court of justice between July 2018 and July 2019.
Answer contributed by
Annabelle Lepièce
19. Do national courts use the possibilities offered by article 29 of Regulation 2015/1589 (Procedural Regulation) providing for the amicus curiae conditions in state aid matters? Has the European Commission submitted written observations to national courts and asked authorisation to appear in court hearings?
Belgium
In the Hays v La Poste case, the President of the tribunal of commerce decided on 15 September 2000 to refer a question to the European Commission but its decision was appealed. The Court of Appeal had not yet ruled on the case when the European Commission, following a complaint, decided on 5 December 2001 that the service concerned constituted an abuse of dominance under 102 TFEU.
No amicus curiae on state aid regarding Belgian courts can be found on DG COMP’s website.
Answer contributed by
Annabelle Lepièce
20. Describe recent developments regarding state aid cases before national courts.
Belgium
The most recent developments regarding state aid before Belgian national courts concern implementation of the European Commission decision on the Charleroi case. Brussels South Charleroi Airport challenged the implementation of this decision before the Chamber of first instance and the Council of State. The Council of State considered that it was not competent in this case. The Tribunal of first instance rejected the interim measures as it considered that there is no emergency. The main proceedings are still pending (see answer to question 8).
In the Agence Bruxelles Propreté case, the tribunal of first instance confirmed its power to suspend a public subsidy although the Brussels Region and the Agence argued the Constitutional Court was the competent court in this case as it concerned the legality of a budgetary statute. Furthermore, it refused to order the recovery of past illegal aids as it could impact the public mission of collecting household waste conferred to the Agence by the Brussels Region (see answer to question 8).
Answer contributed by
Annabelle Lepièce
21. Under national procedural rules, can a government measure be challenged directly in court on the grounds of illegal state aid, or do applicants first have to go through a preliminary administrative review procedure? If so, describe the steps involved in this procedure.
Belgium
A government measure can be challenged before the Council of State, which is competent to assess the legality of such measures. There is indeed a preliminary administrative review procedure before the Council of State. In this context, it is possible to obtain a suspension of the government measure if there is an emergency and a risk of damage difficult to repair and if there is a prima facie case.
Furthermore, following the Agence Bruxelles Propreté jurisprudence, an applicant could request the tribunal of first instance to suspend the grant of a subsidy granted by a government decree.
Answer contributed by
Annabelle Lepièce
22. Under national procedural rules, who has legal standing to challenge a government measure in court on the grounds of illegal state aid?
Belgium
To be able to challenge government measures in court for alleged unlawful state aid, you would have to demonstrate that you have an interest in challenging these measures and, therefore, that you are being affected directly by the unlawful state aid.
For instance, in 2002, the Council of State dismissed an action for suspension launched by an association of Christian employers of the Limburg Region and the Chamber of commerce of Limburg against amendments to directives on soft aid for consultancy, training and studies in Flanders because it can only suspend a measure if the claimants concerned can demonstrate that they suffer irreparable damage owing to the implementation of the measure. Thus, associations cannot act on behalf of their members.
Similarly, in the Agence Bruxelles Propreté case in 2018, an association of private waste collecting companies was considered not to have such interest.
Answer contributed by
Annabelle Lepièce
23. Can a national authority argue in domestic court proceedings that a particular measure contains unlawful state aid, or are there any procedural bars to doing so?
Belgium
National authorities may argue in national court proceedings that a particular measure contains unlawful state aid. Nevertheless, to our knowledge, there is no precedent in Belgium.
In the Champagne Holding case, the ONSS (the Social Security Service) challenged the restructuring and payment plan for Champagne Holding, which had been presented to the tribunal of commerce due to the company’s financial difficulties and approved by the majority of creditors. The plan provided for a write-off of all debts up to 40 per cent. The ONSS claimed that the write-off of its debt constituted an unlawful aid. In its judgment of 18 February 2005, the Supreme Court rejected this claim as the write-off of the social security debts was of the same nature as the write-off of debts of private creditors under the same restructuring and payment plan.
Answer contributed by
Annabelle Lepièce
24. What are the limitation periods under national procedural rules for a party seeking to invoke unlawfulness under state aid rules in domestic court proceedings?
Belgium
In Belgium, there is no specific limitation periods that apply for any party in the national court procedure invoking unlawfulness under state aid rules. In Agence Bruxelles Propreté, to assess the limitation periods regarding a public guarantee granted in 2003, the tribunal of first instance referred to article 17 of the Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of article 108 of the TFEU.
Answer contributed by
Annabelle Lepièce
25. Does any provision of national law prevent an individual with standing from bringing state aid proceedings in the domestic courts concurrently with an investigation by the European Commission (eg, if the individual has complained to the European Commission in parallel, or the European Commission has started an investigation on its own initiative)?
Belgium
There is no provision of Belgian law preventing an individual from bringing state aid proceedings in the domestic courts concurrently with an investigation by the European Commission. In practice, a claimant will generally opt for a complaint to the Commission or a national proceeding, not both at the same time. It is notably due to the fact that most complaints to the Commission are anonymous, which cannot be the case in a national proceeding.
Answer contributed by
Annabelle Lepièce
26. Under which circumstances will a national court stay proceedings as to the existence of state aid pending a European Commission investigation?
Belgium
Under Belgian procedural rules, there is no objection to bring a national court proceeding in parallel to an investigation by the European Commission. National courts would stay proceedings pending a Commission procedure although they are not compelled to. In principle, the national courts may stay proceedings pending a Commission procedure to wait for the result of this procedure or it may order the suspension of the grant of the aid if there is an emergency and a risk of damage that would be difficult to repair for the competitor of the beneficiary of an aid. If the European Commission came to the preliminary conclusion in the opening decision that the measure constitutes an incompatible state aid, the national court should take this preliminary conclusion into consideration and order the reimbursement of the aid according to the Deutsche Lufthansa judgment.
Answer contributed by
Annabelle Lepièce
27. What are the consequences for national courts if the European Commission has already come to the preliminary conclusion in its opening decision that the measure constitutes incompatible state aid?
Belgium
Following the Court of Justice of the EU in the Deutsche Lufthansa case, the national judge must take into account the preliminary assessment of the European Commission, which founds the decision to open a formal investigation. Indeed, such a decision is compulsory if the Commission has doubts on the compatibility of an aid.
According to the Court, in that case:
a national court hearing an application for the cessation of the implementation of that measure and the recovery of payments already made is required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure. To that end, the national court may decide to suspend the implementation of the measure in question and order the recovery of payments already made. It may also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the European Commission’s decision to initiate the formal examination procedure. Where the national court entertains doubts as to whether the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal examination procedure, it may seek clarification from the European Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, it may or must refer a question to the Court of Justice of the European Union for a preliminary ruling.
A Belgian judge would apply this European jurisprudence.
Answer contributed by
Annabelle Lepièce
28. How do national courts react to the Deutsche Lufthansa case? By referring matters to the European Commission (for amicus curiae support) or to the Court of Justice of the European Union (CJEU) for a preliminary ruling under article 267 TFEU?
Belgium
There is no Belgian jurisprudence yet on that matter.
Nevertheless, if an investigation would be pending before the Commission, the Belgian courts should opt for the amicus curiae as the Commission would already be investigating the measure at stake, instead of a preliminary ruling before the Court of Justice of the EU as such procedure takes at least 18 months and may interfere with the Commission’s investigation.
Answer contributed by
Annabelle Lepièce
29. What is the burden of proof in state aid cases before national courts?
Belgium
The burden of proof lies with the claimant under Belgian procedural rules, which apply also in state aid cases.
Answer contributed by
Annabelle Lepièce
30. In light of the EU law obligation on national courts to protect the rights of individuals affected by the unlawful implementation of state aid, what are the requirements under national law for a plaintiff seeking interim measures in the courts, in particular to prevent the grant of aid? In what form and under what circumstances can interim relief be granted?
Belgium
Under Belgian law, the plaintiff can seek interim measures from the courts, for instance, to prevent the grant of the aid. Interim relief is granted on the same conditions as other measures. The plaintiff must demonstrate that its case prima facie founded, there is a reason of emergency and a risk of a damage that would be difficult to repair.
Competitors also turn to the action for injunction before the President of the tribunal of commerce as benefiting from an illegal aid may constitute an unfair commercial practice. This action is generally efficient and quick (between four and six months).
Answer contributed by
Annabelle Lepièce
31. What remedies are available to a national court if it determines that a non-notified measure contained state aid?
Belgium
If a national court found a non-notified measure to contain state aid, it may decide to suspend it or to impose the recovery of the aid. In the case of doubt, it may also request from the Commission an amicus curia to enlighten its assessment or may refer to the Court of Justice for a preliminary ruling.
Answer contributed by
Annabelle Lepièce
32. In light of the EU law requirement that national courts must, in principle, order the full recovery of unlawful state aid from a beneficiary, are there any domestic law provisions that may hinder a national court from ordering the recovery of non-notified state aid? Do national courts set aside such domestic law provisions as required by the Court of Justice’s case law?
Belgium
No. A national court may order the recovery of a non-notified state aid.
Answer contributed by
Annabelle Lepièce
33. Would the national court necessarily declare a guarantee invalid if it secures a loan constituting aid and was granted in breach of article 108(3) TFEU? Does it make a difference if the only aid beneficiary is the borrower and not the lender?
Belgium
If a loan constitutes an aid granted in breach of article 108 (3) TFEU, the guarantee that would have been granted would not be necessary declare invalid. Under Belgian jurisprudence, the judge assesses the particular facts of the case to identify the parties’ intent.
Answer contributed by
Annabelle Lepièce
34. How can a competitor of the beneficiary or other affected third parties claim compensation from the authority granting the state aid for damages caused by the aid? Explain the steps involved in bringing such an action for damages. Explain the steps involved in bringing such an action for damages and how national courts have applied the criteria of the relevant EU case law.
Belgium
The competitor of the beneficiary of an illegal and incompatible aid or any other affected third parties can claim compensation for damages caused by such an aid from the authority granting the state aid. The fault would consist in the violation of the standstill obligation. The rules that apply are the ones applying to classic liability actions.
Following the Maribel bis/ter case, the Belgian state had to recover illegal aid (in the form of reductions of social security charges) from approximately 10,000 companies. Three of them lodged a damage claim against the Belgian state. None of them were successful as the national courts concluded that the mere reimbursement of an illegal aid did not constitute damage and the companies concerned had not demonstrated the existence of a distinct damage resulting from the grant of the illegal aid.
In Agence Bruxelles Propreté, the tribunal of first commerce concluded the damage claim lodged by the private waste collecting companies was without object as the damages were estimated at symbolic €1 by the claimants and the region, the grantor of the public subsidies at stake; and the Agence, the beneficiary, had paid that sum without any recognition of their fault.
Answer contributed by
Annabelle Lepièce
35. How can a third party claim compensation from the member state for damage caused by failure to respect the standstill obligation?
Belgium
Under Belgian law, a third-party claim compensation from the member state for damage caused by the failure to respect the standstill obligation. Article 1382 of the Civil Code states that “any act of man, which causes damages to another, shall oblige the person by whose fault it occurred to repair it.” The infringement of the notification obligation is, in principle, a fault. Nevertheless, the damage and the link between the fault and the damage are difficult to demonstrate in practice.
Answer contributed by
Annabelle Lepièce
36. Under national law, can a third party bring damages actions against the beneficiary?
Belgium
Under Belgian law, a third party can bring damages actions against the beneficiary for having benefited from an illegal and incompatible aid in accordance with the rules applying to classic liability actions.
In the Agence Bruxelles Propreté case, private companies lodged a damage claim against their public competitor (see answer to question 8).
Answer contributed by
Annabelle Lepièce
37. Under national law, how can a beneficiary bring damages actions against the member state as per the SFEI case law of the Court of Justice for having unlawfully granted aid? How do national courts avoid the risk of circumvention of EU state aid rules?
Belgium
Under Belgian law, a third party can bring damages actions against the member state for having granted an unlawful and incompatible aid in accordance with the rules applying to classic liability actions.
Following the Maribel bis/ter case, the Belgian state had to organise to recovery of illegal aid (in the form of reductions of social security charges) granted to around 10,000 companies. Three of them lodged a damage claim against the Belgian state. No of them were successful as the national courts concluded that the mere reimbursement of an illegal aid did not constitute damage and the companies concerned had not demonstrated the existence of a distinct damage resulting from the grant of the unlawful aid.
It was the case in the Agence Bruxelles Propreté case (see answer to question 8). The tribunal held that the claim was without object.
The qualification of the aid (unlawful or unlawful and incompatible) would depend on whether the Commission has adopted a final decision on the public intervention at stake.
Answer contributed by
Annabelle Lepièce
Recovery of state aid
46. Which national authority orders the recovery of state aid following a European Commission decision, a judgment of the Court of Justice, or a national court judgment?
Belgium
In Belgium, there is no dedicated national authority in charge of the recovery of state aid following a Commission decision. The public entity or undertaking that has granted the aid is the one in charge of the recovery. If the beneficiary is reluctant to reimburse the aid, the public authority or undertaking will have to seise the competent national court.
Answer contributed by
Annabelle Lepièce
47. What procedural or administrative actions are contemplated in the national law for the recovery of unlawful or incompatible state aid?
Belgium
There is no national recovering authority in charge of the recovery of unlawful and incompatible state aid. The public authority/undertaking that has to implement decision of the Commission will have to go to the national court to request an enforcement order towards the beneficiary.
Answer contributed by
Annabelle Lepièce
48. What actions are available to the national recovering authority seeking to force an unwilling beneficiary to refund the unlawful and incompatible state aid?
Belgium
There is no national recovering authority in charge of the recovery of unlawful and incompatible state aid. The public authority or undertaking that has to implement decision of the Commission will have to go to the national court to request an enforcement order against the beneficiary.
Answer contributed by
Annabelle Lepièce
49. Can an individual with standing bring an action in the national courts for the purpose of: challenging the validity of the national recovery order implementing the European Commission’s recovery decision; or suspending the national recovery order pending a final decision either on the validity of the national recovery order itself, or on the validity of the European Commission’s recovery decision?
Belgium
The beneficiary may challenge the validity of the national recovery order implementing the Commission recovery decision either before the Council of State if the national recovery order has been adopted by an administration, before the judiciary courts if the decision of the Commission is implemented by public undertakings or if the administration has recovered the sum through a seizure. The beneficiary of an illegal and incompatible aid may request the suspension of the recovery order but under the strict condition set up by the Court of Justice of the EU in the Zückerfabriek jurisprudence.
Answer contributed by
Annabelle Lepièce
50. Can third parties with standing obtain a mandatory order from the court that forces the relevant national authority to recover funds from a beneficiary of incompatible state aid where the former has failed to implement a recovery decision by the European Commission?
Belgium
Third parties may obtain a mandatory order from the court that forces the relevant authority to recover funds from a beneficiary of incompatible state aid where the former has failed to implement a recovery decision by the European Commission. To the author’s knowledge, such procedure never took place in Belgium. Indeed, the European Commission follows closely the implementation of negative decisions and threatens member states of infringement procedures if they do not recover in due time the illegal aids from the beneficiary.
Answer contributed by
Annabelle Lepièce
51. What defences by beneficiaries against recovery have been accepted by national authorities or courts?
Belgium
The defences invoked by beneficiaries against recovery are very limited and they must be in line with the European jurisprudence. In practice, the only obstacle to the effective recovery of an unlawful and incompatible aid is the case of the bankruptcy of the beneficiaries where all its assets have been awarded to privileged creditors.
In the Tekelec International case, which is pending, Oracle Belgium claims that it did not benefit from the aid that was qualified as unlawful and incompatible in 2016 by the European Commission as Oracle group acquired Tekelec International after the end of the effect of the tax ruling and at the market price. The definition of the beneficiary in this case is being the object of three questions submitted to the Court of Justice of the EU by the tribunal of first instance in Brussels.
Answer contributed by
Annabelle Lepièce
52. What is the situation under national law if recovery was ordered by a national court owing to the violation of the standstill obligation but the aid is later declared compatible with the internal market by the European Commission?
Belgium
Belgian law does not provide specific rules in the case of an unlawful aid that have been declared compatible with the common market by the European Commission. The European jurisprudence stated that the national judge may, in that case, only impose interests on the amount of aid for the period of unlawfulness between the grant of the aid and the decision of the Commission on the compatibility of the aid. In the Fortis case, the illegality of the aid was raised. As the aid had been declared compatible at the latest stage, the commercial court did not impose its recovery nor the payment of interests for its unlawfulness, which was very limited in time.
Answer contributed by
Annabelle Lepièce
53. How do national courts apply the CELF I case law (Case C-199/06)?
Belgium
Following the European jurisprudence, the national judge may, in that case, impose interests on the amount of aid for the period of illegality between the grant of the aid and the decision of the Commission on the compatibility of the aid.
In the Fortis case, the illegality of the aid was raised. As the aid had been declared compatible at the latest stage, the tribunal of commerce did not impose its recovery nor the payment of interests for its illegality, which was very limited in time.
Answer contributed by
Annabelle Lepièce
54. How do national courts handle cases where the European Commission has not yet decided on compatibility?
Belgium
In the Agence Bruxelles Propreté case, the tribunal of first instance ordered the suspension of 20 per cent of the public subsidy to the Agence and invited the Region to notify the aid to the European Commission.
Answer contributed by
Annabelle Lepièce
55. Are the recovery interests paid by a beneficiary tax deductible under national tax rules?
Belgium
Recovery interests paid by a beneficiary are tax deductible.
Answer contributed by
Annabelle Lepièce
56. Is aid that was granted in the form of a fiscal measure always recovered through a new tax assessment, or do the national authorities use the freedom of choice under EU law to recover through the easiest available and most efficient method, even if not fiscal?
Belgium
In most national cases regarding tax and levies, complainants seised the Court of Arbitration (now the Constitutional Court). When the Court concluded to the unconstitutionality of the statute concerned due to the existence of an illegal aid, it annulled the statute with the result that the public entity at stake had to reimbursed the illegal tax or levies.
In the tax rulings case, the aid was recovered through a new tax assessment.
Answer contributed by
Annabelle Lepièce
Covid-19 state aid measures
59. Provide information on the legal basis (article 107(2)(b), (3)(b) or (3)(c) TFEU?) chosen for aid measures and the type of aid granted during the covid-19 outbreak.
Belgium
The Belgian authorities did not notify to the European Commission a national umbrella scheme that could have been implemented by various regional and public entities without additional notifications as many other member states had done (France, United Kingdom, Spain, Italy, etc).
In 2020, around 30 decisions were adopted by the Commission on Belgian aid schemes or individual aid notified in the context of the covid-19 outbreak.
Most aid schemes and individual aid were notified by the Belgian authorities under the Temporary Framework for State aid measures to support the economy in the current covid-19 outbreak and were thus approved by the European Commission in accordance with article 107(3)(b) TFEU.
On this legal ground, Flemish and Walloon public guarantee schemes were authorised by the European Commission following separate notifications. Regional schemes that were initially in force until 31 December 2020 were extended until 30 June 2021 following the extension of the Temporary Framework.
The state guarantee scheme was approved on 11 April 2020 by the Commission directly on the basis of article 107(3)(b) TFEU. Although the scheme was notified on the basis of the Temporary Framework, the Commission considered it did not apply to this scheme because the loss distribution of the guaranteed amounts took place at portfolio level and not at individual loan level. Nevertheless, in its assessment, the Commission applied mutatis mutandis the compatibility conditions set out in the Temporary Framework.
In accordance with the Temporary Framework, the European Commission also gave the green light for two Flemish subordinated loan schemes for start-ups, scale-ups and SMEs.
Furthermore, several sectorial schemes based on the Temporary Framework were notified by Belgian authorities to the European Commission:
- a Brussels scheme for companies active in the primary production of agricultural products and in aquaculture for the food sector;
- a Flemish support scheme for the social tourism sector;
- a Flemish aid scheme to support potato and ornamental growers;
- a Flemish scheme of repayable advances in support of the restart of the events sector;
- a Brussels exemption from paying the 2020 annual fee to the Agence fédérale pour la sécurité de la chaîne alimentaire;
- an aid scheme for the Flemish coach sector; and
- a Brussels aid scheme for hotels and aparthotels.
In the air transport sector, Flemish and Walloon regional airports benefited from deferrals of their concession fees that were assimilated to aid in the form of subsidised interest rates for loans in accordance with the Temporary Framework. The Flemish airports were also granted aid capped at €800,000 per undertaking per country. Both Ostend and Antwerp airports are managed by the same undertaking, Egis.
Under the Temporary Framework, the Belgian authorities submitted to the Commission a €25 million state convertible loan in favour of Aviapartner, one of two groundhandlers at Brussels Airport operating under licence. The convertible loan was approved on 7 July 2020.
Finally, the largest individual aid granted by the Belgian authorities concerned public support of €290 million in favour of Brussels Airlines in the form of a six-year loan of up to €287 million, with subsidised interest and a recapitalisation of €2.9 million in the form of profit-sharing certificates. This support was approved by the Commission on 21 August 2020.
Further decisions are expected to be adopted in the coming months, notably in applying article 107(2)(b) in the tourism sector.
Answer contributed by
Annabelle Lepièce
60. Provide information on any state aid measures granted by your country to undertakings in difficulty (within the EU definition) during the covid-19 outbreak but which were excluded from the Covid-19 Temporary Framework because they were in difficulty before 31 December 2019.
Belgium
Throughout the covid-19 outbreak, the European Commission has not adopted any individual aid scheme to be granted by the Belgian authorities to companies in difficulty.
Nevertheless, the Belgian authorities notified a rescue and restructuring aid scheme of limited amount and for small undertakings that was approved on 10 December 2020.
Answer contributed by
Annabelle Lepièce
61. Provide information on any recapitalisation measures introduced under the Covid-19 Temporary Framework.
Belgium
Two recapitalisation measures were implemented by the Belgian authorities under the Covid-19 Temporary Framework:
- a €25 million convertible loan in favour of Aviapartner that was approved by the Commission on 7 July 2020; and
- a recapitalisation of €2.9 million in the form of profit-sharing certificates in favour of Brussels Airlines.
Recapitalisation measures that are regularly applied by Belgian public investment companies are still limited and further Commission decisions should be adopted in the coming months.
Answer contributed by
Annabelle Lepièce
62. Provide information on any aid measures that did not require notification, such as no aid measures or de minimis aid, in the context of the covid-19 outbreak.
Belgium
Following the covid-19 outbreak, the Belgian authorities adopted several general measures such as reporting VAT and social security contributions that do not qualify as state aid as they constitute general measures.
Several aid schemes of limited amount were also implemented under the de minimis aid, such as:
- public support of a maximum €25,000 and a loan of up to €200,000 per undertaking to be granted by SOGEPA, a Walloon public investment fund;
- regional schemes of grants of limited amount to indemnify businesses during their closure; and
- the Brussels public guarantee scheme.
Answer contributed by
Annabelle Lepièce
63. Provide information on any possible litigation before your national courts with respect to potential unlawful state aid granted within the covid-19 outbreak.
Belgium
For 2020, there is no public information regarding possible litigation before the Belgian courts with respect to potential unlawful state aid granted during the covid-19 outbreak.
Answer contributed by
Annabelle Lepièce
