The Possibility of Protection of Legitimate Expectations in Recovery of Unlawful State Aid

• Author: Eve Fink
• Position: Member of the Board,OÜ EMF Invest
• Pages: 133-141

Eve Fink

Member of the Board

OÜ EMF Invest

The Possibility of Protection

of Legitimate Expectations in

Recovery of Unlawful State Aid

1. Introduction

Forty years ago, the European Court of Justice (ECJ) stated for the fi rst time, in its 1973 judgement in the

Kohlegesetz case, that the European Commission may order recovery of unlawful and incompatible state

aid.*1 In Estonia, state aid has become a household topic recently and precisely because aid might have been

granted unlawfully.*2

Article 14 (1) of the Council Regulation laying down detailed rules for the application of Article 93 of

the EC Treaty*3 (Council Regulation (EC) No. 659/1999) provides that in situations wherein negative deci-

sions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned

shall take all measures necessary to recover the aid from the benefi ciary. The Commission shall not require

recovery of the aid if to do so would be contrary to a general principle of Community law. In this context,

‘general principle’ embodies mostly the principles related to protection of legitimate expectations and legal

certainty.*4

The principle of the protection of legitimate expectations is among the fundamental principles of the

European Union (EU).*5 The hope that recipients of aid hold to treat the principle of protection of legitimate

expectations as a lifeline to safeguard against recovery of state aid is remarkable if one looks at the case law

1 Notice from the Commission: Towards an effective implementation of Commission decisions ordering Member States to

recover unlawful and incompatible state aid. – OJ C 272, 15.11.2007, pp. 0004–0017, reference in para. 9 to Judgment of

the Court of Justice of the European Communities of 12.7.1973, C-70/72, Commission v. Germany, para. 13.

2 The Commission has informed Estonia of having decided to extend the procedure in relation to several measures extended

by Estonia to Estonian Air. State aid SA.35956 (2013/C) (ex 2013/NN) (ex 2012/N) – Estonia Rescue aid to Estonian Air.

Available at http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_SA_35956 (most recently accessed

on 22.5.2013). Some other cases in the aviation sector: can be cited: The Commission ordered Hungary to recover the aid

from Malév in its Commission Decision of 9 January 2012 SA.30584 (C 38/10, ex NN 69/10) on the state aid implemented

by Hungary in favour of Malév Hungarian Airlines Zrt. – OJ L 92, 3.4.2013, pp. 1–15. The Commission has notifi ed Latvia of

its decision to initiate the procedure in relation to the aid to airBaltic, state aid SA.34191 (2012/C) (ex 2012/NN): Alleged aid

to airBaltic. – OJ C 69, 8.3.2013, pp. 40–52. The Commission has notifi ed Slovenia of its decision to initiate the procedure

in relation to the aid to Adria Airways, state aid SA.32715 (2012/C) (ex 2012/NN): Alleged aid to Adria Airways. – OJ C 69,

8.3.2013, pp. 53–65.

3 Council Regulation No. (EC) 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the

EC Treaty. – OJ L 83, 27.3.1999, pp. 1–9.

4 Notice from the Commission (see Note 1), para. 17.

5 Judgment of the Court (First Chamber) of 24.3.2011, C-369/09 P, ISD Polska and Others v. Commission, para. 122. –

ECR 2011, p. I-02011.

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