State Aid

Last verified on Wednesday 28th October 2020

State Aid: Greece

Dimitris Vallindas

Sheppard, Mullin, Richter & Hampton LLP

National state aid control - competent authorities

1. Which national authority or body is responsible for the oversight of state aid in your country, in particular the identification of new aid measures and their notification to the European Commission, the monitoring of existing aid measures for compliance with EU state aid rules and decisions, the submission of annual reports on existing aid schemes to the European Commission and cooperation more generally with the European Commission on state aid matters?

Greece

Law 4152/2013 established the Central State Aid Unit (CSAU), a directorate of the Ministry of Finance The CSAU is the main Greek authority responsible for state aid matters. Its main competences and powers are:

  • the notification of aid measures by Greece to the European Commission;
  • the provision of an opinion on all draft entailing a transfer of State resources to operators that have an economic activity (see question 2);
  • the role of national sole contact point for state aid issues with the European Commission and with other European and international bodies;
  • the monitoring of compliance of national measures with EU State aid rules and the processing of cases under examination by the European Commission, in particular the recovery of incompatible aid. It assists in the preparation of any responses to questions raised by the European Commission in relation to state aid matters;
  • the participation in the advisory bodies of DG COMP contributing to the adoption of new rules;
  • the provision of training, know-how and any supporting material to decentralised state aid units (DSAUs); and
  • the annual reporting obligation (SARI);

 

By virtue of its constituent Law, the CSAU is not competent to liaise with private undertakings (whether a beneficiary or a third party), therefore it has no investigatory or enforcement powers.

The CSAU is assisted in its tasks by DSAUs. DSAUs operate as offices within ministries and other bodies dealing with state aid issues. DSAUs are in charge of identifying state aid measures in legislation and other administrative decisions and of approving those that do not require notification to the European Commission, under the guidance of the CSAU. All other identified aid measures are forwarded to the CSAU.

In the case of disagreement between competent bodies regarding a specific state aid case or in the case of a state aid with a particular importance for Greece’s economy, a special interministerial committee for state aid, consisting of the Minister of Finance as chairman, the Minister of Foreign Affairs, the Minister of Development, Infrastructure and Transportation, any Minister competent for the matter in question and a public servant working for the CSAU, will meet to discuss and resolve the issue.

Law 4152/2013 provides for the establishment of a Central Information System of State Aid (CISSA), which will contain every Greek state aid measure approved by the European Commission, or granted in accordance with the De Minimis Regulation or the General Block Exemption Regulation. When the CISSA is fully established, it will be monitored by the CSAU and each DSAU system will be connected to it. The CSAU also manages at national level the Transparency Award Module on which brief information regarding awarded state aid is uploaded. This is available at https://webgate.ec.europa.eu/competition/transparency/public/search and contains information such as the beneficiary’s name, amount and type of aid etc.

Administratively, relations with the European Union go through the Permanent Representation of Greece to the European Union (RP). The RP remains a source of information and advice on the matter. Participating in all the multilateral meetings and bilateral contacts with the Commission on these subjects, it has at its disposal a comprehensive and up-to-date view of the Commission's practice.

Answer contributed by Dimitris Vallindas

2. Does any authority monitor the national legislative process to identify potential aid measures? Does this independent authority have sufficient powers to prevent the legislature or government from adopting aid measures that do not comply with EU state aid rules?

Greece

All drafts that may entail a transfer of state resources to operators that have economic activities must be assessed concerning the possible existence of state aid.

The granting authority must submit its drat to the competent DSAU. The DSAU has 20 working days to conduct a preliminary analysis on the existence of state aid. Drafts of legislative or administrative nature that may contain state aid must be submitted to the CSAU for an opinion, before their adoption by the Parliament or competent body.

In the absence of aid, the CSAU issues a positive opinion and the draft is adopted.

If the draft entails any state aid, the CSAU’s opines on the necessary changes to make it compliant with the applicable state aid rules, and, if necessary, the draft is notified to the European Commission. If a measure that may entail state aid is not submitted to the CSAU, the CSAU must inform the granting authority, and the latter must not implement the measure until the CSAU issues its opinion.

Therefore, in principle, a measure that may possibly contain a state aid cannot be implemented without the prior consent of a DSAU or the CSAU. That said, as in all member states, unlawful state aid is granted from time to time in Greece.

Answer contributed by Dimitris Vallindas

3. What are the competences of the national authority responsible for state aid control, and what is the legal basis for these powers in domestic law? Does this authority have the power to grant interim measures in addition to any interim relief that may be available in the national courts?

Greece

The powers of the CSAU and the DSAUs were described above at questions 2 and 3. As explained, they have no investigative or enforcement powers. Consequently, they cannot order the termination or repayment of aid, nor grant interim measures. The CSAU does have supervising and monitoring powers, in particular in the context of aid recovery.

The recovery procedure is initiated by the Ministry competent in the sector of the beneficiary. Further details are provided in question 9.

Answer contributed by Dimitris Vallindas

4. Aside from the role played by the European Commission and national courts in enforcing EU state aid rules, does the national authority responsible for state aid control accept complaints made by competitors, other interested parties, or other third parties regarding potentially unlawful and incompatible aid measures?

Greece

In Greece, there is no specific entity for hearing complaints from competitors of a state aid beneficiary outside the competent courts. Only the courts are competent to efficiently hear competitor claims contesting the grant of state aid.

In particular, the CSAU is not competent to receive complaints from private parties and has no investigatory or enforcement powers. But if any administrative authority receives a state aid complaint, the principle of good administration in principle obliges it to inform the complainant that it receives its complaint and forward it to a DSAU or the CSAU. The latter will decide whether a notification to the European Commission is necessary or not.

Pursuant to the general rules of the Code of Administrative Procedure, any person with a legitimate interest can request the review of an administrative act by the same body that issued the act or by its superior or supervising body. Regarding state aid issues in particular, in case of rejection of an application for aid in accordance with Law 4399/2016 (aid schemes under the GBER), the applicant should first file an objection against this decision before being able to challenge the rejection before the competent court.

Answer contributed by Dimitris Vallindas

5. Does the national authority responsible for state aid regularly cooperate or exchange information with the state aid authorities in other member states? If so, are there formal structures to facilitate this cooperation and information exchange, or does this occur on a purely ad hoc basis? In the context of the covid-19 outbreak, has the national authority responsible for state aid regularly cooperated or exchanged information with the state aid authorities of other member states?

Greece

The CSAU and DSAUs cooperate and exchange information with the local authorities or other public bodies.

There is no formal structure such as the European Competition Network to cooperate with other member states on state aid matters.

Answer contributed by Dimitris Vallindas

6. Which body represents your country in state aid proceedings before the EU courts?

Greece

Greece’s representation before the EU courts is handled either by the Legal Council of the State, supervised by the Minister of Finances, and/or the Special Legal Department – EU Law Section of the Ministry of Foreign Affairs. The CSAU assists them in the representation of Greece before the EU courts.

Answer contributed by Dimitris Vallindas

7. Is there a national register or other central source of data on national aid measures? Are the various state aid reports, complaints, decisions, etc, published?

Greece

All schemes and information concerning aid should be registered in the CISSA.

In addition, in application of EU reporting obligations (in particular Regulation No. 2015/1589), Greece has set up an internal reporting system from local authorities to central ministries under the supervision of the CSAU to provide the Commission (SARI, State Aid Reporting Interactive) with the annual report on all aid granted during a given year in Greece.

This report is separate from the State Aid Transparency Public Search on DG Competition’s website to give access to state aid individual award data provided by member states in compliance with the European transparency requirements for state aid (for aid above €500,000).

See: https://webgate.ec.europa.eu/competition/transparency/public?lang=en.

Answer contributed by Dimitris Vallindas

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.

Greece

See question 20. There are no specific Greek laws relating to state aid, apart from administrative circulars on state aid and procedural rules on the recovery of aid (see question 9).

The CSAU has issued a cursory circular on the existence of aid, one on the publication of aid schemes and measures on the TAM, and one on De Minimis and GBER aid, as well as a check list on the existence of aid, all available on its website (in Greek).

Answer contributed by Dimitris Vallindas

9. Is there a specific legislative or administrative scheme under national law relating to the application or enforcement of EU state aid rules?

Greece

EU law is directly applicable and the Greek aid schemes refer explicitly to EU rules. There are no specific provisions regarding the application or enforcement of EU state aid rules with the exception of procedural rules for the recovery of aid, which are described in article 22 of Law 4002/2011 and subparagraph B.10 of Law 4152/2013.

Pursuant to the above articles, the national authority competent for seeking the recovery of an unlawful and incompatible state aid is the one that supervises the activities of the beneficiary undertaking. In practice, the granting authority is informed by the CSAU and assisted by a DSAU. The first step in the recovery procedure is to send the beneficiary a copy of the decision ordering the recovery. If the beneficiary does not voluntarily repay the aid amount, the relevant information is sent to the competent tax authority to proceed with the collection pursuant to the Code of Collection of Public Revenue. The amount to be repaid must be sent to the competent tax authority to which the beneficiary submits its income declaration. In this context, the CSAU coordinates the actions of recovery and assists in identifying the beneficiaries, determining the amount of the aid to be recovered and the relevant interest.

In some instances Greece adopted a specific law for the recovery of an aid found incompatible by the European Commission: article 47 of Law 3614/2007 concerning the recovery ordered by the European Commission’s decision in case C37/2005 on a tax-exempt reserve fund for certain companies.

Answer contributed by Dimitris Vallindas

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.

Greece

Law 4399/2016 establishes the legal framework for the establishment of aid schemes aimed at supporting private investments for Greece’s regional and economic development, subject to the provisions of the GBER. Greece has not adopted any other specific rules on the implementation of the GBER. That said, all public authorities publish the necessary information by feeding it into the Transparency Award Module developed by the European Commission and available online at https://webgate.ec.europa.eu/competition/transparency/public/search/EL?resetSearch=true.

The CSAU has issued a circular on De Minimis aid and aid under the GBER, available on its website (in Greek).

Answer contributed by Dimitris Vallindas

11. Are there national rules or guidelines relating to the process of applying for, and the granting of, state support?

Greece

The only national rules on state aid are described at questions 9 and 10.

Answer contributed by Dimitris Vallindas

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?

Greece

Article 7 Law 4413/2016 provides that the state can define, through laws, regulations or administrative provisions, which services constitute SGEIs, how they should be organised and financed, in accordance with state aid rules, and to which obligations they should be subject to in accordance with the applicable legislation.

Other than the above reference, there is no general definition of SGEIs. There are various references to this concept in various laws. For instance, article 3 of Law 4199/2013 provides that rural motor passenger transport constitutes an SGEI pursuant to article 14 TFEU. Likewise, article 3 paragraph 2 indent xviii) of Presidential Decree 33/2007 provides that the Hellenic Natural Gas System Operator SA provides several services (such as security and environment protection services) that constitute SGEIs.

Answer contributed by Dimitris Vallindas

13. Do any studies on national enforcement of EU state aid rules exist? If so, describe the main subjects and results of these studies.

Greece

There is no study carried out by the Greek state with regard to national enforcement of state aid rules to the best of our knowledge.

However, the 2019 Study on the enforcement of State aid rules and decision by national courts, commissioned by the European Commission provides data on Greece.

The Study analysed state aid enforcement by national courts across the EU, including the main trends with regard to the enforcement of EU State aid rules by national courts. It provided best practices in state aid enforcement by national courts across the EU and analyses the use of cooperation tools by the Commission and national courts in relation to state aid cases.

This Study showed that there have been 3 “public” (cases initiated by a public authority) enforcement cases in Greece since 2007 and 12 “private” (cases initiated by a private party) enforcement cases. Most cases (2/3) are heard by the administrative courts either at first instance or at last resort, with only few cases (one-third) being heard by civil jurisdictions. Furthermore, the Study shows that the vast majority of claims were rejected.

Answer contributed by Dimitris Vallindas

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?

Greece

The main principles are governed by EU state aid law directly. Against this EU state aid law background, any competent court will have to hear private complaints against the award of state aid (unlawful aid, ie, not notified to the European Commission or implemented before the latter’s approval and unlawful and incompatible aid following a negative decision by the European Commission).

There is no specific national rule describing in detail who has legal standing to bring an action against the award of state aid. The direct effect of article 107(1) TFEU (on the existence of aid) and of article 108(3) TFEU (on the notification and standstill obligations) allows affected parties such as competitors of the beneficiary to bring an action before the competent court. Under general administrative law, the most important element to be demonstrated is the causal link between the administrative act and the alleged damage.

The general powers of the national courts in state aid matters have already been described in question 13 but are repeated and further developed here for ease of reference.

Administrative courts

In most cases, the Greek administrative courts are competent to hear state aid matters. According to article 1(4)(f) of Law 1406/1983, the administrative courts have jurisdiction regarding disputes that derive from the issuance of administrative acts relating to the award of European or national aid, subsidy and similar benefits, as well as the administrative acts that impose a relevant measure or sanction. state aid cases are introduced before the Greek administrative courts of first instance.

However, where the aid is linked to a tax measure of an amount exceeding €150,000 or a contract awarded after a public procurement procedure or a PPP, then the case is introduced to the administrative court of appeals, as court of first instance.

Finally, in case the measure is part of an investment scheme, the Supreme Administrative Court is competent pursuant to article 110 paragraph 14 of Law 4055/2012.

Civil courts

If aid is granted via a contract between the beneficiary and an administrative body under the provisions of private law, then the civil courts are competent to examine the case.

Answer contributed by Dimitris Vallindas

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?

Greece

Yes, the judgment of a national court can generally be appealed.

Decisions of the administrative courts of first instance can be appealed before the administrative courts of appeal where the total amount of the dispute exceeds €5,000, within 60 days from the day the decision of the court was served to the parties. An appeal does not have a suspensory effect, but such suspension can be requested in case of risk of irreparable damage.

Decisions of administrative courts of appeal can be appealed solely on points of law before the Council of State, Greece’s supreme administrative court.

Judgments of civil courts can be appealed within 30 days if the party lives in Greece and 60 days if the party lives abroad or does not have a known residence. An appeal in principle suspends the execution of the first instance judgment, unless if the judge has decided it is provisionally enforceable.

Answer contributed by Dimitris Vallindas

16. Do national courts sometimes confuse the concept of unlawful aid with incompatible aid?

Greece

Unfortunately, there seems to still be some confusion or reluctance to apply the direct effect of article 108(3) TFEU. For instance, in its decision A3016/2014 in which the applicants had raised the violation of article 108(3) TFEU, the Council of State rejected the argument on the basis that it was not competent to rule on the compatibility of the alleged aid. But this is a separate question, which indeed falls under the exclusive competence of the European Commission, independent from the obligation to notify state aid measures and only implement them after their approval from the European Commission.

Answer contributed by Dimitris Vallindas

17. Do national courts sometimes confuse the concept of new aid with existing aid?

Greece

In the limited judgments that have been issued, the Greek courts do not appear to confuse the concepts of new aid and existing aid.

Answer contributed by Dimitris Vallindas

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.

Greece

Pursuant to article 267 TFEU, national courts can refer preliminary questions to the Court of Justice on any aspect of EU law.

Greek courts have used the procedure under article 267 TFEU, although not very frequently: see for example cases C-262/19 – Agrotiki Trapeza Ellados, C-690/13 – Trapeza Eurobank Ergasias AE v Agrotiki Trapeza tis Ellados AE (ATE) and Pavlos Sidiropoulos, C-134/91 – Kerafina-Keramische v Greece and C-106/87 – Asteris and Others v Greece and EEC.

Answer contributed by Dimitris Vallindas

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?

Greece

The amicus curiae procedure allows someone who is not a party to the litigation to intervene in a case where they believe that the court’s decision may affect their interests. Under article 29 of Regulation 2015/1589 the courts of the member states may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of state aid rules.

According to the Commission’s amicus curiae database, only one request has been made by a Greek court concerning state aid matters: the Athens Court of First Instance requested the Commission’s opinion in the Hellenic Shipyards case (SA.15526, Commission decision of 2 July 2008, confirmed by the General Court in cases T-384/98, T-391/08 and by the Court of Justice in case C-246/12 P), which the Commission provided on 29 July 2009. The court’s questions concerned whether the Commission was investigating the case, and whether a specific measure constituted state aid. The Commission’s opinion and the judgment can be found on DG COMP’s website.

The Commission also submitted four written observations in the same Hellenic Shipyards cas, before the Administrative Court of First Instance of Athens, on 4 June 2016 and 16 September 2019. These observations concerned the following issues:

  • the application for suspension of the recovery order;
  • the suspension of the tax authorities’ acts confirming the recovery amount as a debt of the company and requesting the payment of this debt;
  • the application to set aside tax authorities’ acts confirming the recovery amount as a debt of the company and requesting the payment of this debt; and
  • the appeal against the recovery order.

 

All observations and judgments can be found on DG COMP’s website.

Answer contributed by Dimitris Vallindas

20. Describe recent developments regarding state aid cases before national courts.

Greece

The main recent cases in Greece are the ones already mentioned above concerning the Hellenic Shipyards case:

  • Judgment of the Administrative Court of First Instance of Athens No. 4636/2020 of 26 March 2020, rejecting the appeal against the implicit refusal of the Greek state to set aside the acts by which it had ordered the recovery of the aid found unlawful and incompatible by the Commission in its decision of 2 July 2008 in case SA.15526. An alternative method based on a series of commitments had been agreed between the European Commission and Greece in 2010, but Greece did not comply with its commitments under this 2010 agreement either. The GCEU and the CJEU confirmed the validity of the 2008 decision (cases T-384/08 and T-391/08, confirmed in C-246/12 P), and the actions against the 2010 agreement were rejected as inadmissible (T-456/11, confirmed in C-616/12 P). The CJEU further ruled in case C-485/10 that Greece had failed to fulfil its obligations under article 260(1) TFEU, and subsequently fined Greece in case C-93/17 for not having complied with its judgment in case C-485/10 (a lump sum of €10 million and a periodic penalty payment of c. €7.3 million for each six-month period from the date of delivery of the judgment in C-93/17 until the date of compliance with the judgment in C-485/10). The national court rightfully ruled that after the Commission has qualified a measure as incompatible state aid the state is under an obligation to recover that aid. In the present case, the Commission’s decision had also been confirmed by the EU courts, even if such actions had no suspensive effect in any event. Greece, therefore, followed the simple procedure of article 22 of Law 4002/2011 described at question 9, but the legal basis remained the Commission’s decision of 2008. The national court, therefore, rejected the beneficiary’s action as inadmissible.
  • Judgment of the Administrative Court of First Instance of Athens No. 4051/2020 of 11 March 2020, rejecting the request to set aside Greece’s acts calculating the exact amount and ordering the recovery of the aid. As per above, the national court found that all national acts were simply of an “informative” nature, and the legal basis of the recovery remained the Commission’s decision of 2008.

Answer contributed by Dimitris Vallindas

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.

Greece

As explained in question 2, any person with a legitimate interest can request the review of an administrative act by the same body that issued the act or by its superior or supervising body, but this is not a prerequisite to challenge directly a government measure before a court in state aid matters. The only exception is that, in case of rejection of an application for aid in accordance with Law 4399/2016 (aid schemes under the GBER), the applicant must first file an objection against this decision before being able to challenge the rejection before the competent court.

Greek national courts have been petitioned to enforce compliance with state aid rules or the standstill obligation under article 108(3) TFEU, although such actions are still not very frequent. An action by a competitor does not automatically have a suspensory effect, but the competitor can request the suspension or even the provisional recovery of the aid granted in violation of the standstill obligation.

Pursuant to article 202 of the Greek Code of Administrative Procedure, the applicant can request for the suspension of the execution of the administrative act granting the aid. The suspensory effect of the decision expires with the issuance of the final judgment of the administrative court on the legality of the administrative act in question. Suspension can be granted if the measure would lead to irreparable damage for the applicant or when the main action for the annulment of the administrative measure is very likely to be accepted. The applicant bears the burden of proof. In any case, the suspension request is denied if the action for annulment is obviously unfounded or inadmissible (even if the damage is considered to be irreparable). The suspension request is also denied if the negative effects of such a suspension on the public or third parties interest is bigger than the benefit for the applicant.

Concerning specifically the recovery of aid found incompatible by a European Commission decision, a specific process is provided for in article 202, paragraph 4 of the Greek Code of Administrative Procedure. According to this procedure, in case the beneficiary wants to request the suspension of the act implementing such recovery, the following cumulative conditions must be satisfied (in line with the EU Courts’ case-law, see joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen a.o. and Case C-465/93, Atlanta a.o.).: (i) apart from the action before the national court, he must have filed an action for annulment before the General Court. Where such an action has not been filed, the national court must send a relevant preliminary question to the CJEU; (ii) there is a serious doubt on the validity of the European Commission’s decision or the national act implementing it; and (iii) the plaintiff demonstrates that the immediate execution of the act will cause him irreparable damage.

 

Answer contributed by Dimitris Vallindas

22. Under national procedural rules, who has legal standing to challenge a government measure in court on the grounds of illegal state aid?

Greece

The main principles are governed by EU state aid law directly. Against this EU state aid law background, any competent court will have to hear private complaints against the award of state aid (unlawful aid, ie, not notified to the European Commission or implemented before the latter’s approval and unlawful and incompatible aid following a negative decision by the European Commission).

There is no specific national rule describing in detail who has legal standing to bring an action against the award of state aid. The direct effect of article 107(1) TFEU (on the existence of aid) and of article 108(3) TFEU (on the notification and standstill obligations) allows affected parties such as competitors of the beneficiary to bring an action before the competent court. Under general administrative law, the most important element to be demonstrated is the causal link between the administrative act and the alleged damage.

The general powers of the national courts in state aid matters have already been described under question 14.

Answer contributed by Dimitris Vallindas

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?

Greece

To the best of our knowledge, in Greece, there is no such case (similar to Eesti Pagar: C-349/17, 5 March 2019, EU:C:2019:172) where the question was whether the public authority concerned should ex officio set aside an unlawful aid without the intervention of a judge. However, this would be the logical consequence of the principle of primacy of EU law over national law, as enshrined in the Simmenthal case (whose principles extend to the administration). See 106/77, 9 March 1978, Amministrazione delle Finanze dello Stato v Simmenthal SpA (discarding by the national court of a law contrary to EU law), EU:C:1978:49.

While the assessment of the compatibility of the aid measures falls within the exclusive competence of the Commission, the national courts have to safeguard the subjective rights of those affected by a breach of the obligation of prior notification of state aid to the Commission provided for in article 108(3) TFEU.

Answer contributed by Dimitris Vallindas

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?

Greece

The Legal Council of the State issued legal opinion 171/2014 on 20 October 2014, in which it clarified that, pursuant to article 14 of Regulation 659/1999 (now replaced by Regulation 2015/1589), article 22 of law 4002/2011 (see question 9), article 6(3) of the Code of Collection of Public Revenue and article 86, paragraphs 1 to 3 (in particular, 86(3)(f) of law 2362/1995 (now replaced by article 136, paragraphs 1-3 of law 4270/2014), recovery is possible up to 20 years after the certification of amount due to the state.

The dispute resolution directorate of the Independent Authority for Public Revenue correctly drew all the necessary conclusions from the Simmenthal case-law and set aside two rulings from the Greek Council of State (the supreme administrative court) that reduced the national law limitation periods in essence to five years concerning tax matters (although the cases did not concern state aid specifically). This decision was based on the primacy of EU law, ensuring that procedural specificities should not constitute an obstacle to the immediate recovery of unlawful aid.

Answer contributed by Dimitris Vallindas

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)?

Greece

The Greek courts adopt all necessary measures in view of drawing the appropriate conclusions from an infringement of article 108(3) TFEU in application of the Deutsche Lufthansa (Case C-284/12) and SFEI (Case C-39/94) case law. There is no provision of national law that prohibits an individual from brining State aid proceedings whilst there is an ongoing Commission investigation. Instead, bringing such a claim enables the claimant to obtain interim relief. That said, granting interim relief is subject to very strict legal requirements before national courts as well (see joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen a.o. and Case C-465/93, Atlanta a.o.).

Answer contributed by Dimitris Vallindas

26. Under which circumstances will a national court stay proceedings as to the existence of state aid pending a European Commission investigation?

Greece

The national court must first determine whether the measure constitutes State aid. In case of doubt, the court may question the European Commission or ask the Court for a preliminary ruling. However, once the Commission has decided to initiate the formal investigation procedure, the national court is, in principle, bound by the European Commission’s (preliminary) qualification of the measure as state aid. In other words, the national court cannot anymore stay proceedings as to the existence of aid, but 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, national courts may decide to suspend the implementation of the measure in question and order the recovery of payments already made. They may also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s decision to initiate the formal examination procedure (C-284/12 Deutsche Lufthansa). Requesting information or an opinion from the Commission or a preliminary ruling from the Court are, of course, still possible options for the national court.

Answer contributed by Dimitris Vallindas

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?

Greece

As soon as the Commission has decided to open the formal investigation procedure, the national court is obliged to adopt all the necessary measures with a view to drawing the consequences of a possible violation of article 108(3) TFEU. See question 26 with regard to what those consequences could be.

Answer contributed by Dimitris Vallindas

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?

Greece

To our knowledge, there has not been any case before a national court while a formal investigation procedure was pending. That said, the Greek courts should apply the Deutsche Lufthansa case law. Unfortunately, the Greek courts are not very active in referring requests for preliminary rulings.

Answer contributed by Dimitris Vallindas

29. What is the burden of proof in state aid cases before national courts?

Greece

It is the claimant who bears the burden of proof under article 145 pf the Greek Code of Administrative Procedure. Likewise, according to article 338 of the Civil Procedure Code each party must prove the facts necessary to support its claim. The claimant is, therefore, the one who must establish the existence of the contested aid and produce evidence thereof.  

Answer contributed by Dimitris Vallindas

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?

Greece

Competing undertakings can request the suspension of a decision granting unlawful state aid or that a contract (concession, sale, etc) entailing state aid not be signed. In theory, this type of action could be based on the principle of supremacy of EU law but to our knowledge there has been only one such case. In that case, the Court of auditors accepted a request for revision of the state’s decision to conclude a public service obligation contract with a company.

In civil matters, general jurisdiction to order such measures lies with the single-member court of first instance. The court will order provisional remedies measures if:

  • there is an urgent need or imminent danger, to protect or preserve a legitimate interest or to regulate a situation; and
  • there are reasonable grounds for believing that the right in respect of which the provisional remedy is sought does indeed exist.

Preliminary evidence must be presented showing that there are reasonable grounds for the measure: full proof is not needed, and it is enough that there is incomplete proof that provides a lesser degree of certainty as to the facts that need to be established; the court can grant protection once it considers that the facts alleged are probable. The court will grant protection only where there is an urgent need or an imminent danger that the debtor may be separated from the attachable property belonging to him or her in such a way that it will be impossible to enforce the claim at a later stage if the creditor is awarded an enforceable title at the conclusion of the main proceedings.

Interim regulation of relationships and freezing orders would be the most appropriate interim measures in such cases. The main case would need to be lodged, at the latest, at the same time as the application for interim measures.

Interim measures are not ordinarily open to appeal, the only exception being those imposing a provisional regulation of rights of possession and use, which may be appealed before the competent multi-member court of first instance within 10 days of service.

In administrative matters, the single-member or the three-member administrative court of first instance is competent for interim measures. Administrative acts can be suspended in case of risk of irreparable harm. In such cases, the applicant must first file its main action against the administrative act in question.

Answer contributed by Dimitris Vallindas

31. What remedies are available to a national court if it determines that a non-notified measure contained state aid?

Greece

As explained in question 30, suspension injunctions and freezing orders seem to be the most appropriate interim measures. Provisional recovery and damages are also possible in theory, but as explained above there have been only a few cases before national courts. It all depends on what the applicant requests.

Answer contributed by Dimitris Vallindas

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?

Greece

To our knowledge there are no domestic law provisions that may hinder a national court from ordering the recovery of non-notified state aid, but we are not aware of any such case.

Answer contributed by Dimitris Vallindas

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?

Greece

A guarantee may also benefit the lender when a guaranteed loan is used to reimburse another loan, which is not guaranteed. This is, however, an assumption that is rarely made, and difficult to demonstrate. Moreover, the mere fact that the stabilisation of a company in difficulty benefits all of its creditors is an important element in the recognised consequence of the aid, and does not, in itself, constitute aid in favour of these creditors.

In this regard, the Legal Council of the State, within its competence to advise administrative authorities following the submission of a relevant question, in its Opinion 42/2014, clarified that in case the granting of a guarantee by state bodies for securing a loan violates article 108(3) TFEU, taking into account the direct effect of Treaty articles, this results in the automatic declaration of the loan contract as null and void, under articles 174 and 180 of the Greek Civil Code. These articles provide that an agreement that violates the law is invalid and is considered as non-existent. Therefore, the declaration of the loan contract as null and void is automatic and there is no need for a national court to recognise and declare its invalidity.

Answer contributed by Dimitris Vallindas

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.

Greece

Damages can be sought from the Greek state for non-compliance with EU law in the following two ways.

First, under national liability law, the Greek state and its organs can also be held liable for fault or negligence under articles 104-106 of the Introductory Law to the Greek Civil Code. Before administrative courts, the general procedural rules are described in articles 71-78 of the Code of Administrative Procedure.

It is necessary to prove a fault, the resulting damage and a causal link. These provisions can, therefore, be used to engage the state’s responsibility (including the legislator and even the judiciary in certain circumstances) for adopting an act that breaches EU law.

Second, damages can also be sought from the Greek state under EU law liability principles directly, in line with the principles set out in Court of Justice cases (Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci and Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur-Factortame III). Under this case law, the liability of the state will be engaged where: (i) the rule of law infringed is intended to confer rights on individuals; (ii) the breach is sufficiently serious; and (iii) there is a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. As regards the second condition, where the state has a large margin of discretion in implementing a policy, the CJEU has considered that the state’s liability can only be engaged where the state has manifestly and gravely disregarded the limits on its discretion. However, in the field of state aid, no margin of discretion is left to the member states on the application of article 108(3) TFEU. By definition, therefore, a violation of article 108(3) TFEU should always be regarded as a serious breach, likely to engage the state’s liability within the meaning of the case law mentioned above.

Damages claims by the beneficiary (against the granting authority) before the national courts are based on the same principles. However, the damage for the beneficiary cannot be the aid recovery. This is not a damage, only the logical consequence of the restoration of undistorted competition following the granting of unlawful aid. The damage must be inherently different in nature and in scope: the beneficiary should show a specific damage (eg, that it would have invested its money differently in the absence of the annulled aid measure).

In both types of claims described above, damages would be calculated according to methodologies similar to antitrust cases (loss of revenue, reduction of turnover, etc) but, as explained above, it cannot include the aid and interest to be recovered.

Answer contributed by Dimitris Vallindas

35. How can a third party claim compensation from the member state for damage caused by failure to respect the standstill obligation?

Greece

To claim compensation for the damage caused by the failure to respect the standstill obligation, a person must demonstrate a damage related to this failure. In such a case, he or she would meet the conditions to qualify as an affected third party, and the answer would be the same as in question 34.

Answer contributed by Dimitris Vallindas

36. Under national law, can a third party bring damages actions against the beneficiary?

Greece

The existence of an action for liability and damages against the beneficiary can be seen as an incentive in national law for private parties to be more cautious when they received state aid. However, these “horizontal” litigations are still rare.

Actions engaging the liability of the beneficiary of unlawful aid have to be brought before the civil courts. The court first determines whether the beneficiary benefited from the unlawful state aid and whether he knew or could have known that the aid received was unlawful (ie, granted in violation of article 108() TFEU), and second, evaluates the amount of damages to be granted to its competitors.

Under EU case law, the beneficiary, by claiming any benefit from the violation of article 108(3) TFEU, commits an act of unfair competition under national legislation (Case C-39/94, SFEI and others v La Poste and others). The competitor of such a beneficiary has the right to stop this act of unfair competition by having recourse to an efficient litigation procedure that leads to a definitive decision. In Greece, there is no specific national law providing explicitly for damages actions by a third party against the beneficiary of a state aid measure. Any person who considers that he has suffered damages by any action of the aid beneficiary, which can be directly linked to the aid received, can claim compensation before the civil courts, under the general reparative provisions of article 914 of the Civil Code, or under the unjustified enrichment provisions, in particular article 904 of the Civil Code.

Damages would be calculated according to methodologies similar to antitrust cases (loss of revenue, reduction of turnover, etc) but, as explained above, it cannot include the aid and interest to be recovered.

Answer contributed by Dimitris Vallindas

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?

Greece

See question 34.

Answer contributed by Dimitris Vallindas

Consequences of violation of state aid rules

38. What are the consequences of a violation of EU state aid rules for the validity and enforceability of the aid measure under national law? Are the consequences the same for unlawful aid that was not notified to the European Commission as for aid that the European Commission has ultimately determined as incompatible with the internal market?

Greece

Where a member state has granted unlawful aid to an economic operator, it is, in principle, incumbent on the member state to recover the aid in order to restore the economic situation as it existed prior to the payment of the aid. The EU case-law considers that such recovery cannot be regarded as a penalty; it is merely the logical and proportionate consequence, having regard to the objective of effective competition established by the Treaty, of the infringement found.

Failure to notify the aid measure to the Commission automatically renders the aid unlawful. Aid that is unlawful because it has not been notified but has been declared compatible by the Commission is not subject to recovery. However, the national court may require the aid beneficiary to reimburse the equivalent of the interest that it should have paid on the banking market between the payment of the aid and the declaration of compatibility by the Commission.

The recovery of incompatible unlawful aid is an obligation instituted by the Commission in order to encourage member states to comply with the obligation, laid down in article 108(3) TFEU, to notify the Commission of planned aid.

Before doing so, the national court must first determine whether the measure constitutes state aid. In case of doubt, the court may ask the European Commission or refer a question to the Court for a preliminary ruling.

However, once the Commission has decided to open the formal investigation procedure, the national judge is in a way divested of this competence and is obliged to adopt all the necessary measures to draw the consequences of a possible violation of the law.

Regulation No. 734/2013 added a new article 29 to the Rules of Procedure concerning the cooperation with national courts. It is foreseen that the courts of the member states may request the Commission to provide them with information in its possession or with opinions on questions relating to the application of state aid rules.

The Commission, acting on its own initiative, may submit written observations to the courts of the member states responsible for the application of the State aid rules. With the permission of the court concerned, it may also submit oral observations. Before formally submitting its observations, the Commission must inform the member state concerned of its intention to do so.

For the sole purpose of drawing up its observations, the Commission may request the competent court or tribunal of the member state to forward any documents available to the court or tribunal that are necessary for the Commission's assessment of the case.

Where the national court is satisfied that a measure constitutes prima facie unlawful aid, it is for the national court to assess the need to order interim measures, pending its judgment on the merits, for example where it has requested clarification from the Commission. In this case, if the aid has been paid out, the Commission considers that the most appropriate solution is to order that the aid and interest be deposited in a blocked account, until the national court has ruled on the merits of the case. If the aid has not been paid, the court may suspend its payment by interim order.

Where unlawful aid is about to be paid, the national court must, after finding that the granting measure is invalid on the ground of infringement of article 108(3) TFEU, prevent the payment of the aid.

Where a court finds that a measure constituting state aid has not been notified or has been put into effect before obtaining the Commission’s approval, it must, in principle, order the full recovery of the aid, together with compound interest.

The breach of the obligation to notify the aid constitutes a fault likely to engage the responsibility of the state by a competitor of the beneficiary undertaking that has suffered damage, as well as by the beneficiary of the aid itself. The CJEU has in fact recognised the right of undertakings to which unlawful aid has been paid to bring an action for state liability in accordance with national procedural rules (CJEU, 12 February 2008, CELF, case C-199/06, paragraph 53).

National legal risks are not theoretical: in other member states recourse is increasingly being taken by companies competing with aid beneficiaries, but less so in Greece for the moment. These legal risks are all the more important since the mere infringement of procedural rules leads to the illegality of the measure and the application of sanctions prejudicial to the state, as for the beneficiary company.

Answer contributed by Dimitris Vallindas

39. What are the consequences of a violation of EU state aid rules for the validity of a government regulation or contract containing the aid measure, and for subsequent regulations or contracts linked to the aid measure? Are the consequences the same for unlawful aid that was not notified to the European Commission as for aid that the Commission has ultimately determined to be incompatible with the internal market?

Greece

Regarding contracts with the state, the decision to enter into the contract can be challenged before national courts. There has been one case at least where a contract was stopped from being signed because of the possible existence of overcompensation. If such a contract or regulation was contrary to EU state aid rules, any subsequent documents that would be based on it would also be affected by this defect.

Unlawful aid that would be found compatible by the European Commission could only give rise to the payment of unlawfulness interest, while a finding of incompatible aid would result in the contract or regulation being null and void.

Answer contributed by Dimitris Vallindas

Enforcement by the European Commission

40. Describe any major state aid investigations opened by the Commission against your country over the past 12 months. State whether these investigations were specific to your country or part of a broader investigation into several member states.

Greece

As Greece has been granting less aid in the past years, there has been no formal investigation procedure against Greece in the past 12 months.

In terms of Greece’s track record with the European Commission, the latter has opened 19 formal investigation procedures in the last 10 years concerning Greece, and has adopted 15 recovery decisions. These concerned a variety of sectors, such as manufacturing, air transport, mining, defence industry, casinos, etc. The latest negative decisions with recovery concerned the Hellenic Defence Systems case, in which the European Commission ordered Greece to recover up to €55 million of public support for civil activities of the company(SA.34308), and the aid measures linked to the fires of 2007 (SA.39119).

Answer contributed by Dimitris Vallindas

41. Has the European Commission suggested appropriate measures concerning existing aid measures in your country over the past 12 months?

Greece

Not applicable.

Answer contributed by Dimitris Vallindas

42. Has the European Commission ever opened specific investigations against your country following a sector inquiry?

Greece

Not applicable.

Answer contributed by Dimitris Vallindas

43. Has your country ever been subject to an injunction by the European Commission to suspend or provisionally recover aid under article 13 of Regulation 2015/1589?

Greece

To the best of our knowledge, the Greek state has never been subject to a suspension injunction or a recovery injunction by the Commission.

Answer contributed by Dimitris Vallindas

44. Has your country ever been subject to an infringement procedure under article 108(2) TFEU and article 260 TFEU?

Greece

The Greek state has been subject to numerous procedures pursuant to Article 108(2) TFEU for non-compliance with a Commission decision in which the Commission ordered the recovery of unlawful and incompatible aid (actions for failure to fulfil obligations):

  • Case C-51/20: pending case concerning the failure to fulfil obligations under the Court’s judgment in case C-481/16.
  • Case C-11/20: pending case concerning the failure to adopt within the prescribed period all the measures necessary to implement the Commission’s decision of 7 December 2011 in the case SA.28864 SA.28864 concerning compensation payments made by the Greek Agricultural Insurance Organisation (ELGA) in 2008 and 2009 or, in any event, by failing to inform the European Commission of the measures it has taken.
  • Case C-93/17: case concerning the failure to fulfil obligations under the Court’s judgment in case C-485/10, imposing a penalty comprising a lump sum of €10 million and a periodic penalty payment of c. €7.3 million for each six month period from the date of delivery of the judgment in C-93/17 until the date of compliance with the judgment in C-485/10.
  • Case C-481/16: failure to fulfil obligations under article 288 TFEU and Commission Decision 2014/539/UE of 27 March 2014 concerning aid granted by Greece to Larco General Mining & Metallurgical Company SA, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.
  • Case C-363/16: failure to fulfil obligations under article 288 TFEU and Commission Decision 2012/541/EU of 22 February 2012 concerning aid granted by Greece to United Textiles SA, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.
  • Case C-77/14: case removed from the register.
  • Case C-60/14: case removed from the register after the annulment of the Commission Decision 2011/716/EU of 24 May 2011 by the General Court in case T-425/11 confirmed by the Court in case C-530/14 P.
  • Case C-263/12: failure to fulfil obligations under Commission Decision C(2011) 1006 final of 23 February 2011 on the aid granted by Greece to Ellinikos Xrysos AE, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.
  • Case C-485/10: failure to fulfil obligations under Commission Decision 2009/610/EC of 2 July 2008 on the aid granted by Greece to Hellenic Shipyards SA, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.
  • Case C-369/07: failure to fulfil obligations by not complying with the Court’s judgment in case C-415/03 on aid from Greece to Olympic Airways found incompatible in the Commission Decision 2003/372/EC of 11 December 2002. This was the first time financial penalties were imposed for not complying with a Commission State aid decision.
  • Case C-419/06: failure to fulfil obligations under Commission Decision of 14 September 2005 on the aid granted by Greece to Olympic Airways and Olympic Airlines, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.
  • Case C-415/03: failure to fulfil obligations under Commission Decision 2003/372/EC of 11 December 2002 on the aid granted by Greece to Olympic Airways, by not adopting within the period prescribed the measures necessary to recover the unlawful and incompatible aid.

Answer contributed by Dimitris Vallindas

45. Has the European Commission ever undertaken on-site state aid monitoring visits based on article 27 Regulation 2015/1589 (previously article 22 of Regulation 659/1999)? How were the visits carried out? What measures were taken to assist the officials and experts carrying out the visit?

Greece

To the best of our knowledge, the Commission has only undertaken on-site state aid monitoring visits in Greece based on article 27 Regulation 2015/1589 in the Hellenic Shipyards case (SA.15526).

Answer contributed by Dimitris Vallindas

Recovery of state aid

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?

Greece

See question 9 concerning the national rules on the recovery of state aid.

Answer contributed by Dimitris Vallindas

47. What procedural or administrative actions are contemplated in the national law for the recovery of unlawful or incompatible state aid?

Greece

See question 9 concerning the national rules on the recovery of state aid.

Answer contributed by Dimitris Vallindas

48. What actions are available to the national recovering authority seeking to force an unwilling beneficiary to refund the unlawful and incompatible state aid?

Greece

If the undertaking concerned does not repay the aid, the state can turn to a third party that holds the undertaking’s funds to recover the aid directly by seizing the funds deposited in a bank account. Once insolvency proceedings have been opened, the state must register its claim with the creditors’ representative (see below for more details on insolvency proceedings).

Answer contributed by Dimitris Vallindas

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?

Greece

Pursuant to article 202 of the Greek Code of Administrative Procedure, the applicant can request for the suspension of the execution of the administrative act granting the aid. The suspensory effect of the decision expires with the issuance of the final judgment of the administrative court on the legality of the administrative act in question. Suspension can be granted if the measure would lead to irreparable damage for the applicant or when the main action for the annulment of the administrative measure is very likely to be accepted. The applicant bears the burden of proof. In any case, the suspension request is denied if the action for annulment is obviously unfounded or inadmissible (even if the damage is considered to be irreparable). The suspension request is also denied if the negative effects of such a suspension on the public or third parties interest is bigger than the benefit for the applicant.

Concerning specifically the recovery of aid found incompatible by a European Commission decision, a specific process is provided for in article 202, paragraph 4 of the Greek Code of Administrative Procedure. According to this procedure, in case the beneficiary wants to request the suspension of the act implementing such recovery, the following cumulative conditions must be satisfied (in line with the EU courts’ case-law, see joined Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen a.o. and Case C-465/93, Atlanta a.o.).: (i) apart from the action before the national court, he or she must have filed an action for annulment before the General Court. Where such an action has not been filed, the national court must send a relevant preliminary question to the CJEU; (ii) there is a serious doubt on the validity of the European Commission’s decision or the national act implementing it; and (iii) the plaintiff demonstrates that the immediate execution of the act will cause him irreparable damage.

 

Answer contributed by Dimitris Vallindas

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?

Greece

Where aid has not been notified, competitors are entitled to have their rights protected before national courts. In recognising the direct effect of the last sentence of article 108(3) TFEU, the Court has given the national courts the role of guarantor of the effectiveness of the notification obligation contained therein.

A finding that aid has been granted in breach of article 108(3) TFEU must, in principle, lead to its recovery.

In Greece, we are not aware of any case where a competitor has sought to obtain the recovery of unlawful and incompatible aid.

Answer contributed by Dimitris Vallindas

51. What defences by beneficiaries against recovery have been accepted by national authorities or courts?

Greece

In Greece, the administrative act ordering recovery can be based directly on the negative Commission decision. As mentioned above, the beneficiary of the aid can contest the recovery order by bringing an action for annulment before an administrative court. There have only been a few direct actions brought by beneficiaries of state aid against recovery orders (see question 35 for some recent examples).

Action contesting the validity of the Commission decision

National courts have no jurisdiction under EU law to assess the validity of acts of the Community institutions. Even though they might consider the Commission’s negative decision to be illegal, a national court may not prevent the ensuing recovery procedure. Should they disagree with a Commission decision, the courts should refer a preliminary question as to its validity to the CJEU under article 267 TFEU.

Such requests (by the beneficiaries of aid or competitors of the beneficiaries) are, however, inadmissible if a direct challenge of the Commission decision before the General Court under article 263 TFEU would have been manifestly admissible (Case C-355/95 P, TWD v Commission).

Other grounds

While the national courts’ recovery obligation is not absolute, the EU Courts’ case-law demonstrates that it is only in exceptional circumstances that the recovery of unlawful state aid would not be appropriate. The legal standard to be applied in this context is similar to the one applicable under articles 16 and 17 of the Procedural Regulation. In other words, circumstances that did not stand in the way of a recovery order by the Commission cannot justify a national court refraining from ordering full recovery on the basis of the Commission’s decision. The standard that the EU courts apply in this respect is very strict. In particular, the Court of Justice has consistently held that, in principle, a beneficiary of unlawful aid cannot plead legitimate expectations against a Commission recovery order. This is because a diligent businessperson would have been able to verify whether the aid he or she received was notified or not.

In fact, the only exception that has been accepted by the EU Courts is the absolute impossibility to implement the recovery decision. But this must be in principle argued by the member state before the Commission and eventually the EU courts. And even this concept has been interpreted in a very restrictive manner. For instance, one cannot plead requirements of national law, such as national prescription rules (case C-24/95 Alcan) or the absence of a recovery title under national law (case C-303/88 Italy v Commission). Moreover, the Court of Justice has consistently held that the obligation to recover is not affected by circumstances linked to the economic situation of the beneficiary. In other words, a company in financial difficulties does not constitute proof that recovery is impossible (case C-52/84 Commission v Greece). For the Court, the only way to demonstrate an absolute impossibility of recovering the aid is to show the absence of any recoverable assets (case C-52/84 Commission v Greece).

Answer contributed by Dimitris Vallindas

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?

Greece

Since the reversal of case-law by the CELF judgment in 2008, the national court is no longer required to order the reimbursement of aid that has not been the subject of prior notification, but which has been recognised as compatible by the Commission. The CJEU considers that “exceptional circumstances may arise in which it would be inappropriate to order repayment of the aid". The national court is therefore not required to order the recovery of aid implemented in failure to comply with article 108(3) TFEU, when the Commission has adopted a final decision establishing the compatibility of the aid with the internal market. Although the aid was paid in breach of a procedural rule laid down by the Treaty, its recovery is not required, the decision of the Commission having declared it compatible. However, the aid remains unlawful until the compatibility decision.

The CJEU requires, however, that the interest that the aid beneficiary would have had to pay if it had had to borrow the sum in question on the capital market be repaid, pending a declaration of compatibility by the Commission. During this period, the person concerned benefited from unlawful aid. The undue advantage thus consists, on the one hand, in the non-payment of the interest that he would have paid on the relevant amount of compatible aid if he had had to borrow that amount on the market pending the Commission's decision and, on the other hand, in the improvement of his competitive position vis-à-vis other market operators during the period of illegality. The national court is, therefore, obliged to order the aid recipient to pay interest for the period of illegality.

The CJEU states that the national court, therefore, has the choice of whether or not to order repayment, without prejudice, however, to the member state’s right to put the aid declared compatible into effect again at a later date.

On the other hand, where proceedings are brought before a national court in parallel with an examination procedure conducted by the Commission, the national court is not relieved of its obligation to safeguard the rights of individuals under article 108(3) TFEU. In another judgment in the CELF case, the Court clarified that the national court could not, in this case, stay the proceedings until the Commission had ruled on the compatibility of the aid with the internal market, even where the Commission had already adopted a first decision of compatibility that had been annulled by the CJEU.

The Court clarified that this obligation to rule only requires the court to actually adopt safeguard measures if the conditions justifying those measures are met: there is no doubt that the aid is classified as state aid, the aid is about to be or has been put into effect, and there are no exceptional circumstances that make recovery inappropriate.

When deciding on such a request, the national judge may order the aid to be repaid with interest, or the funds to be paid into a blocked account, as suggested by the Commission in its above-mentioned 2009 Communication. On the other hand, a simple order to pay interest on sums that would remain in the company's accounts would not allow the obligations laid down in article 108(3) TFEU to be complied with. But judges would likely be reluctant to order a complete recovery before the Commission’s decision, even if in theory they do not have to wait for it.

Answer contributed by Dimitris Vallindas

53. How do national courts apply the CELF I case law (Case C-199/06)?

Greece

While in principle the national court is required to order the recovery of any unlawful aid, it is not bound by this obligation where the Commission has adopted a final decision finding the aid to be compatible with the internal market within the meaning of article 107 TFEU.

In such a case, under European law, the national court is only required to order the beneficiary of the aid to pay interest in respect of the period of illegality (during which the unlawful aid benefited the recipient in an anticipatory manner, in breach of article 108(3) TFEU).

Damages that resulted from the unlawfulness of the measure can also be requested even after the Commission’s compatibility decision.

Answer contributed by Dimitris Vallindas

54. How do national courts handle cases where the European Commission has not yet decided on compatibility?

Greece

Where the national court is satisfied that a measure constitutes prima facie unlawful aid, it is for the national court to assess the need to order interim measures, pending its judgment on the merits, for example, where it has requested clarification from the Commission.

Although the administrative judge is the main actor in the field of interim measures in the field of state aid, the judicial judge may use the various summary proceedings available to him to act in this matter. While the scope of the measures is extensive and the conditions flexible, the civil judge has been rarely seised and has never pronounced interim measures because of the illegality of an aid. The administrative court that has been seised slightly more often in summary proceedings has not shown much more willingness to grant interim measures. Overall, the latter remains reluctant to grant interim measures as a consequence of the granting of unlawful aid.

Despite their broad scope in private law, interim measures have a limited scope in the field of state aid. They are not likely to have any influence on the decision granting aid. Therefore, they cannot stop the granting of aid, as only the administrative court has this competence. The interest of an interim injunction in civil law may be for the competing third party to require the beneficiary to stop receiving the aid, or even to return it if he has already received it. Either the petitioner manages to prove the urgency and the absence of serious dispute or the existence of a dispute, or in the absence of such conditions, he demonstrates imminent damage or a manifestly unlawful disturbance.

Most of the cases in Greece have been rejected, so it is difficult to see any specific tendency.

Answer contributed by Dimitris Vallindas

55. Are the recovery interests paid by a beneficiary tax deductible under national tax rules?

Greece

To the best of our knowledge, this question has not been raised yet in Greece. In principle, the response should be negative since this would create another unlawful aid in the aid recovery process.

Answer contributed by Dimitris Vallindas

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?

Greece

To the best of our knowledge, this question has not been raised yet in Greece. In principle, the courts use the freedom of choice. The procedure of recovery described in question 9 provides significant flexibility to the Greek authorities.

Answer contributed by Dimitris Vallindas

Main areas of state aid

57. Which sectors have received the highest amounts of aid in the past five years? Provide an update relating to covid-19 state aid, in particular by distinguishing guarantee schemes – referring to any statistics on the activation rates – from grants or recapitalisations, or other measures more related to R&D or the health sector.

Greece

With regard covid-19 state aid, see questions 58 to 62.

The last year for which official statistics are available is 2018, and we do not have statistics by sector. Traditionally, regional development was the objective that concentrated the largest portion of the aid granted by Greece (almost €2 billion in 2015, €135 million in 2018), and such aid is generally horizontal. Rail infrastructure has also been a large aid beneficiary, €678 million in 2016, €285 million in 2018). The objective that has seen the largest increase has been environmental protection including energy savings, €12 million in 2016, €188 million in 2018.

Answer contributed by Dimitris Vallindas

58. Provide information on the amounts of state aid paid out under approved state aid schemes and individually approved state aid for the past five years.

Greece

There are several aid schemes and individual aid in force in Greece. All schemes and information concerning aid are available at: https://webgate.ec.europa.eu/competition/transparency/public?lang=en.

Answer contributed by Dimitris Vallindas

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.

Greece

Greece has adopted measures under only the Temporary Framework (ie, article 107(3)(b) TFEU in response to the covid-19 crisis.

 

Number

Title

Budget

Main conditions

SA.56815

Repayable advance scheme for enterprises affected by the outbreak

€1 billion increased to €2 billion

All sectors, significant reduction of activity, solvent enterprises, TF limits

SA.56839

Support to SMEs loan obligations

€1.2 billion

SMEs, all sectors, solvent enterprises, TF limits

SA.56857

First loss business loans portfolio guarantees for new working capital loans in the outbreak

€2 billion increased to €2.25 billion

All companies except financial intermediaries, aquaculture, agriculture, maximum 80% coverage, maximum 40% of loans of financial intermediary, expanded to self-employed, direct grants for guarantee premiums

SA.57615

Wage subsidies to self-employed

€500 million increased to €500 million

Up to 20 employees, financial institutions excluded, 70% monthly minimum monthly wage, 12 months maximum,

SA.57194

Grants in the Floriculture Primary Production Section

€10 million

€100.000 per company maximum

SA.58029

Support to primary sector farmers, producers and open air markets’ sellers

€31.7 million

Direct grants, address liquidity needs, €100.000 per company maximum

SA.58048

Support of the sheep and goat farming primary sector

€14.8 million

Direct grants, address liquidity needs, €100.000 per company maximum

SA.58069

Support to the asparagus primary production sector

€4.7 million

Direct grants, address liquidity needs, €100.000 per company maximum

SA.58367

Support micro and small enterprises in the region of Central Macedonia

€150 million

Direct grants for working capital, address liquidity needs, €800.000 per company maximum

SA.58368

Working Capital and Investment Loan Scheme by the Greek Infrastructure Fund

€450 million

Subsidised interest rates for loans, incl. subordinated loans, up to 3,000 employees in selected sectors: tourism, transport, construction and energy

SA.58616

Support micro and small enterprises in 12 regions

€1.5 billion

Maximum 50% of expenses, direct grants, €800.000 per company maximum

 

Answer contributed by Dimitris Vallindas

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.

Greece

To date, no recapitalisation measures have been adopted under the Temporary Framework in Greece.

Answer contributed by Dimitris Vallindas

61. Provide information on any recapitalisation measures introduced under the Covid-19 Temporary Framework.

Greece

Greece has adopted several aid measures that did not require notification. To the best of our knowledge, there have been no de minimis aid measures adopted in the context of covid-19.

Answer contributed by Dimitris Vallindas

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.

Greece

While competition litigation for compensation has thus increased more than significantly in recent years, it seems that companies are not yet fully aware of their right to be compensated for the damage caused to them by infringements of EU state aid law. The covid-19 pandemic and its hitherto unprecedented amount of state aid should undoubtedly reverse this trend. However, there have not been any such challenges to date before the Greek national courts.

Answer contributed by Dimitris Vallindas

63. Provide information on any possible litigation before your national courts with respect to potential unlawful state aid granted within the covid-19 outbreak.

Greece

Not applicable.

Answer contributed by Dimitris Vallindas

Other

64. Provide information on any other special features of your country’s state aid regime not covered above.

Greece

Noen at this time.

Answer contributed by Dimitris Vallindas

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