 Well, good afternoon. I hope you can hear me clearly and I think I'm not too loud. I've stayed here a little longer after that. So, my name is Islih Houshra. I've had the privilege of, already, teaching on the course in Berlin. The Black Box. We're talking about a Black Box project. We've talked a lot about sensitivity. And for me, I mean, it works on the area of JK for a long time. The best advice to anybody dealing with that activity comes from Yogi Berra. And if you're an English-speaking person, you might know that Yogi Berra is very famous for all these sort of wise things, a bit like, he's a bit like Yogan Krav for English. And one of the famous things is to come to a fork in a road, take it. And that's really a good thing to say how you have to reach a decision on sensitivity. It's quite, I think, sometimes really, really difficult to rely on the case law because the case law is contradictory. So that doesn't really help us when we come in fiscal cases, in tax cases, to the issue of recovery. Because, of course, if we look at the general principles, the rules are quite simple. The national courts have the obligation to ensure that European law is implemented and that illegal aid is recovered. But that principle, of course, is much harder to apply in taxes. And it can have far-reaching consequences. So the Commission addressed the decision to a member state. And then the member state has to somehow, through its national legal system, ensure recovery. And back in 2006, the Commission commissioned a study on the problems around recovery. It's fairly well known. It wasn't always clear who had the responsibility to do so. It wasn't always clear who actually had to repay and the exact amount. It was often the case that procedures were missing. At national level, for example, interim relief. I think this was a French case especially. There were no legal instruments at national level to recover aid through interim relief, interim injunctions. Difficult to suspend recovery and appeal. That was something the Commission didn't like. But in many member states, of course, that was possible. And that resulted in a lot of delay in recovery. And then, of course, the relationship between central government and local government ensuring that local benefits such as police or state aid have been illegally paid have that been recovered. So the Commission had a lot of problems with the way member states behaved. But the Commission, of course, isn't always the duplicate on the top. And the Commission, too, is not always very clear in its decisions as to what should be recovered. Now, in principle, as we know from March of 16 or 52, the Commission must recover the legal aid, and that results in the increase in law. Here, the role of legitimate expectations could play an unimportant role. We don't know. There are very few cases where there is to be honoured. But to go back to what Raymond was saying, the Court has always said in principle, aid has to be recovered. But what the Commission often doesn't do, obviously, especially in cases that have concerned schemes, but not just straight aid schemes also individually, is it doesn't actually tell the member state how much it should recover. And the Court has been quite lenient towards the Commission in saying, well, as long as you give general guidance that allows the member state to assess how much should be recovered and can identify beneficiaries. I don't have to say who the beneficiaries are, but there should be enough general indications there for the member state to identify the beneficiaries, then that's sufficient. I think the classic example is the Italian case media set where the Commission actually required to do a whole set of hypothetical tests to reconstruct a market that never was, but should have been had it not been for the measures that the Commission projected to. A similar one is long-term energy contracts in Hungary where, again, the Commission said, well, we don't like those long-term contracts for the state aid. And you have to find out how much aid was given in Hungary by reconstructing a market that skipped the whole long-term contract. So it was a very complex exercise. So the general rule is that once state aid is identified as incompatible, it should be recovered without delay, so it's usually two to eight months or some decision will extend that, but, of course, in accordance with national procedures. And it's here that we enter the black books what are those national procedures that do they exist. What we have seen, and I think the earlier stage of the course and the lectures and the discussions about this, that the Court of Justice is getting quite tough as to what it requires from national courts. There's a kind of consistent line in Hungary which I think most recently has been expressed in its German case, Proud Holt, with the principle of race-treatment, it was an issue. And the Court said, well, you know, it's a bit like the Forbden Road, just ignore it. And unless, of course, you're going to have to apply national law contra-legion, but otherwise you have to give precedence to the judge. I'm in the black box and I'm also a bit of a Martian in the black box because it's my job to talk about the Netherlands, I'm not Dutch, I'm Scottish, and I was brought up in the first civil law culture, but it's a common law as well. So I was brought up with the idea that if you have separate civil law and administrative law, that's actually undemocratic, that we have a famous treatise on the 19th century, by Walter Lager, where he was very critical of the idea that the military should grow. And so for us, it's very strange that we have all the problems of, you know, on what legal basis a recovery decision should be taken, what type of porridge should be planted, what kind of procedure should be applied. Generally, in a common law system, we don't really get involved with those kinds of problems to the degree that it seems to occur in a civil law system. So that's my Martian take on this. There are obviously lots of good reasons, but it's sometimes difficult to get into the history of the system to understand why all these different types of legal basis issues are so problematic. But they are there, and that's something people want to talk about. So what I'm primarily going to look at is the new law, which went through the first chamber of duty and a legal entry to force in July history. But before I do that, I just want to look at some of the statistics and ask, well, you know, we have this new law, but what's the problem? And in the last 10 years, in the last decade, I've actually made two recovery decisions that the commission has addressed up to the next one. I think we need to know a lot more about Starbucks. And the other is a very obscure case called Leicester Dunn. And there, of course, the amount to be recovered was much smaller than in the Starbucks case. In the preceding decade, there were nine recovery decisions addressed to the elements, but so obviously things are getting better. And you can compare that rather neighbor record with the number of cases that come for the court, where stated has been argued with not much success, of course, with the success of this microphone. I just want to talk a little bit about Leicester Dunn case, because it raises some interesting issues with regard to recovery. And I think touches on a couple of questions that have been already raised for discussion later in the panel. So, for the Starbucks, there has been a recovery order and the pending annouement by the general court or eventually the court addresses. So that is the rule. So just because you appeal against a commission decision doesn't mean that the decision is suspended in any way you still have to pay up. And that apparently has happened in Starbucks. Normally the money is paid into some kind of escrow account and there it stays until the case is settled. But Leicester Dunn was quite interesting, because just like Starbucks, it wasn't notified because nobody thought that there was an age issue at stake. Now, to cut a very long story short, the idea here was that land was going to be developed in an area between Raiden and the Hague and this was to be developed by a joint public-private partnership. And land was sold by the local authority transferred to this partnership. Now, the deal had been negotiated over quite a period of time. The crisis hit and the value of the land seemed to have decreased and indeed an independent valuation was contained and that confirmed that the price of the land had dropped. Now, somebody complained about this and the commission conducted a formal investigation and found that indeed there had been a breach of what we call the market investor operator that no market operator would have sold the land at this cheap price and therefore they demanded that the difference between what the commercial value of the land should be and the price that had been sold at should be then recovered. So they came to a figure of nearly 7 million which included the way for a grant exploitation fee and another policy fee. So that amount, nearly 7 million, has been recovered within a few months. Now, it was a very controversial ruling that the commission on the party has made for many reasons whether or not this market economy has actually recruited the right and it was contested by the parties successfully and the commission's decision was annulled in the case that was decided in the course of 2014. So if a decision is annulled, the commission has taken new decisions so it reopened the formal investigation and it had a closer look at the land valuation that the local authorities had used to get to the price that it had sold the land back in 2009. So there was no aid. Now, quite interestingly, it seems that in this intervening period of three years no aid was actually recovered. Now, in theory, the Dutch Civil Court, you see through the case, should have recovered the aid even though it wasn't until 2016 that the commission finally decided it was compatible. But it didn't because it decided it was too complicated and that the private law contracts that underpins the transactions didn't actually give an evident legal basis for recovery. Now, I'm taking that from the explanatory memorandum of the Pekamp-Eastern New Law. I haven't seen the underlying procedure before the Dutch Civil Court. Maybe there was nothing published, there was nothing actually happened, but maybe somebody in the room knows more about that than I do. But it's a good illustration of the complexities of recovery and it's a good illustration of a major problem which we are about to see, I think, with the new law. Another issue before I get to the new law is, of course, what happens when an entity, a public entity makes mistakes and somebody benefits perhaps unwittingly from those mistakes and it turns out that the mistaken calculations confirm the state of aid. Well, we have, again, another important decision I think well known and that is from the Rabban start in the Dutch Equalisation Fund case where the administration, the one charged with calculating who was allowed to get compensation from this Health Equalisation Fund they made a series of mistakes over three consecutive periods and then they found out that some states had been made and they demanded that we should be laid back by Health Insurance Fund to obtain this wrongful compensation. This picks up on a theme that we were talking about before the break. This duty of law of cooperation and the Council of State interpreted very strictly that applying to all the administrative bodies and therefore they should have done their job properly and they had a duty under European law to recover that compensation back to Manchester City. And that was based, there has been a discussion a lot in the Dutch literature about this case but it was based on the unwritten general principles and that sort of situation will now be covered by the new law by Article 7 of the new law and it strikes me that the Dutch Council of State interprets these European law obligations very strictly also in the Eurydice case that was talked about just before. Now what do we have until this new law kicks in? Well we have three different systems civil, admin and fiscal all with different rules when it comes to possible routes to recovery and the new law then is meant to get rid of all the gaps in the tunas that are created partly because we have three different systems which could apply so civil, fiscal or administrative. So as you might recall back something cost one is the major lacuna in Dutch aben law has been that if a sum was to be recovered according to European law and there was no legal basis in Dutch law and one had to rely on these general unwritten principles this would not cover interest and the commission requires confirmed by the court that interest must be charged on the sum to be recovered and this is important because even if aid which is not notified to the commission but subsequently comes to the commission's notice and eventually is declared compatible eventually for the period that that money that support has been in the hands of the beneficiary then it's still in legal state aid even if it's subsequently declared compatible and to kind of remedy that the court has held that the commission is entitled to require member states to recover interest on the financial advantage that have you enjoyed the legal prior to the declaration of compatibility so the fact that you could not have to find a legal basis to charge interest was actually quite a big problem and when looked at from this European point of view that if you infringe the standstill principle and the beneficiary enjoys the aid prior to formal clearance there is still this recovery interest we call it in European law to be paid so looking then quickly over the last day why do you need this a single basis a national legal basis given that we have so few recovery cases well it seems that we do have gaps we do have sometimes also conflicting rules or rulings as well for example on the school interest business with the controversial Dutch legalisation which seems to not even bothered with the interest issue and there's been some discussions also as to who the beneficiary action is sometimes it's a case of looking through a construction to see who the indirect beneficiary is and who should recover which public entities charge with the duty of recovering those are all things that were not clear so the new law will provide a solution to all those issues but it's limited and it's limited to commission decisions it will not extend to national court proceedings where the beneficiary has successfully passed to all the groups of standing and said gets judgement in particular form of support does come first day-to-day this new law then will not that's because of the government that here we're not confronted with the same gaps and problems so Dutch law already provides for solutions to Dutch problems recovering on the basis of union union law is not a good fit with Dutch law so that's kind of the basis so so the legislation and the first circuit in 2008 the proposal to introduce some kind of legislation on recovery takes back to 2008 and it was introduced in response to the Florian-Compost case where it was evident that if there was no legal basis for recovery in Dutch law and even if it was possible to rely on general unwritten law or to rely on the direct effect of article 108 there was still this problem the Netherlands was threatened with infringement proceeding by the European Commission not having an adequate legal basis to ensure the recovery of interest and that was dropped that infringement action was dropped and often the case these things are often negotiated away because there was a promise made at the time to introduce legislation to deal with this gap and another issue that was to be dealt with at the same time it was the issue of limitation periods in the tax system in the Netherlands and many countries the limitation periods are relatively short and the European law limitation for recovery in the state age is 10 years but in the Netherlands it was normally either 3 or 5 but in the Netherlands it was 12 so for the fiscals of course there was also the ongoing discussion of how do you actually institute a recovery is that then a new tax measure to introduce a new tax measure for some of these taxed at an insufficient rate that paid to the design before so nothing much happened that law was introduced before the 2nd chamber there was a new opinion on it from our Council of State and then it seemed to be just out until July 2016 when it re-emerged and maybe somebody knows more about why it was suddenly dusted down and taken over the shelf again but it was and we now then a law that was introduced in July of this year which is quite unusual there are not many member states that have a law on recovery and we'll hear about the situation in a minute I think I recall that Italy didn't have one when we discussed it in Berlin it's Spain has one but I'm not sure how it works but I think having a single legal instrument is the exception rather than the rule and I suppose the Netherlands would be a nice guinea pig to see if that's a good thing or not in the future I think just to sum up what the law will do it will establish a uniform basis of recovery it will only apply to EUC decisions it will not apply to national court decisions the government body that is responsible for having granted the aid will have to determine the issue of what's to be refunded and by whom and charge interest and I think that kind of incentive for these bodies to do that they can not only reclaim the amount but also become more engaged in recovery procedures importantly and rather than this general uniform procedure will not apply so the normal system will be used to provide the instruments and the procedures for recovery of fisculate I'm sure of course there will be a lot of discussion as to what's fisculate almost self-evident the new legislation gives a series of taxes of instruments that will be covered under the fiscal and leg but I'm sure that there will be some nice parafist and various charges that will maybe not be to which part of the system will be known so the law resolves the interest issue so it's clear that interest will be recovered it also states that it's clear that the interest has to be dated so it's available so that could be somewhat right and it makes clear that the limitation period will be restricted to 10 years so I made a very quick summary for what the article will say and I thought I would create some questions not that important to have the answers but maybe that's something worth to discuss given that the new law will be limited to recovering from these conditions that we've only had to look at is it really worth the effort and we really need it and it's advertised if you like and has to be a very straightforward simple remedy that will close all the gaps maybe we could think about whether in the original proposal it should be included now it's not it's a separate procedure and what about judicial protection what about the lights and lamp case where after four years the whole decision of the commission is effectively annulled what would have happened in that case had this law been applicable and that sum of money had to be recovered now I should add there that there's a very nice phrase I like it very much in my country and around it where the minister quite often repeats the phrase the actual implementation of recovery order into private contracts and specific relations is something that will have to be tackled according to the normal procedures of Dutch law so there seems to be a kind of fine drawing in the sand that this new law provides a basis for adopting this separate decision of the process of recovery but for the consequences of all that are going to be on civil relations three parties underlined contracts not tackled too complex indeed but it raises also I think also this aspect raises the issue of judicial protection and maybe then from that perspective the few procedures will focus on channels to the city and is that then also desirable is that should be a new wider is this all in the interest of efficiency or that should be maybe minimized for the sake of efficiency so those are all questions I thought that we'll use to maybe discuss and maybe also think about in the context of when we hear about Belgium where there is no new single piece for recovery so if you want me to take questions I'll just do