 The question whether European law requires national force to apply rules of European law on their emotion is one that provokes very much emotions. The ever-increasing body of European law makes it a very complex question and the technical nature of those European rules makes it even more very full. Moreover, for most national judges European law is not their first legal system. It's not their mother legal system. So I think it's fair to say that most judges are less familiar with European law than with their own national legal system. And of course, I think it's well, well being understood that this sentiment does not have any legal merit. But nevertheless, one cannot disregard this fact of life. Moreover, the question not only provokes anxious emotions, but also raises very fundamental issues relating to the role of a judge in disputes submitted to the court because it touches upon the division of rules between the parties and the judiciary. The answer to the question if a national court is obliged to apply European rules at their own motion has a direct impact on the balance struck in national legal systems between all the participants involved in the administration of justice. An ex officio duty of a judge reflects its responsibility for the proper application of the law with surpassing the division of rules in general. And of course, every legal system contains some ex officio obligation for courts. But this obligation is always a limited one. And the European order, the European legal order in this respect is not fundamentally different. What differs, however, is that the European legal order takes precedence over the national legal order and that European rules should be applied in a uniform manner in all the member states. What are, what is the impact of these characteristics on an ex officio obligation? But let me first introduce the dilemma with which national courts are faced when they are dealing with the question of ex officio obligation. I take an example from the general case law of the European Court of Justice. The case I would like to mention is the case Doctor C 2808. The referring court, the Dutch court, had to decide whether a national decision to slaughter animals suspected of being infected with food and mouth disease was legal. The cattle breeding holding was suspected of being infected with food and mouth disease because it was situated in a vicinity of a holding that was found being infected on the basis of a laboratory test. It was being submitted in this case that the laboratory made a mistake. The veterinary authorities however claimed that the laboratory test had binding force by virtue of directive 85 511. This question, the question whether a laboratory test could have a binding force raised a lot of difficult and complicated questions which were referred to the ECJ. However, only weeks after that national court heard a case in which it decided to refer a question to the ECJ. A almost similar case was brought to the court. However, this case differed in one major respect. None of the parties relied on the invalidity of the laboratory test. The court was aware of the problem because it dealt with a previous case in which it referred questions to the ECJ. But no one of the parties made any issue. So the court was faced with the problem. What to do? Should we only decide on the pleas raised by the parties and should we run the risk that we will decide this case differently from the other case? Or should we raise in this case on our own motion the compatibility of the decision with the directive? In this case, only a European ex-official obligation could be brought any remedy to the claimants. So this case illustrates the problems faced by a national court. It faces the technical nature. It faces the unexpectedness of the problems because as I said, it's fair to say that if the court would not have been confronted with the first case in which it referred questions to the ECJ, the court would not have been aware of the problem. In essence, can the application of European law be dependent on the accidental knowledge of the judge of problems that legal provisions might invoke? Let me be clear about the topics I want to deal with in this presentation. Firstly, I would like to say something about the concept of ex-officio obligation because that concept is a rather confusing one. Secondly, I want to raise some relatively related issues. Those issues that are not really ex-officio obligation, but once you talk about ex-officio obligation, you immediately think about these other issues. Thirdly, I would like to say a few words about the context, the state age rules. In the fourth place, I would like to say something about ex-officio application in European law in general. I would like to conclude with a few remarks on the application of the ex-officio application on EU states age rules. To start with the ex-officio application, the concept. When we are dealing, when we are discussing the concept of ex-officio application by a court, it often appears that although when we are using the same words, the meaning attached to those words differ importantly. I borrow from Dutch law the distinction of three types of ex-officio application. The first type of ex-officio application is the obligation of a court to supplement please raised by parties in law. This type of ex-officio application is an expression of the principle courier use no fits. The judge, the court knows the law. The court is familiar with the law and should therefore determine which rules of law are applicable to the submissions of the parties and the court should give an interpretation to those rules. In this first type of ex-officio application, the court in essence qualifies please raised by parties in legal terms. This legal qualification by the court should have a basis in the factual submissions parties. The second type of ex-officio application by the court is already less common. This type relates to an obligation to supplement facts. This type of obligation is based on the idea that the court should base its ruling on the facts as they are in reality and not on the facts as they are viewed and presented by the parties. The factual truth of the dispute should be the foundation of the decision of the court and not the facts as they are perceived or invented by the parties. In this second type of ex-officio obligation, the court takes into account facts that are not stated by the parties and verifies facts that are stated by parties but are not challenged by the other party. The third type of ex-officio obligation requires that the court rules on please on which parties did not rely. The court is in this third type not restricted in considering legal arguments that are not raised by parties. The basic idea behind this third type is that the court ensures the proper application of the law and is thereby not dependent nor restricted by the parties. This distinction between the three types of ex-officio application by a national court will be very useful in analyzing the case law of the ECJ in which often it is not made explicitly what the court meant by ex-officio application. These three types of ex-officio application have in common that they relate to judicial activism and as you will realize the question how much judicial activism is required will not be answered in the same way in every legal system and even within one legal system the extent of an ex-officio obligation may differ according to the field of law. In the field of civil law parties will be dominant leaders. Parties will have the freedom to determine the scope of their relationship and have the freedom to determine which part of their conflict they would like to have to be decided by a court. In criminal cases however the question might be quite differently. The ex-officio obligation may therefore override from one rule to another and this is also one of the reasons why the topic ex-officio obligation is so difficult to grasp. I would like to say a few words about the related issues. Before I start with those related issues I would like to make one point very clear. However important the full and effective application of the law is and the application of EU law is no exception in this respect. A court is not able to do anything if parties refrain from starting legal procedures or if parties refrain from an appeal against the court. A court decision will always remain dependent on some initiative of the parties. So one has no choice than to accept that there will always be limitations on the full and uniform application of the law and the full and uniform application of EU law. The first related concept I would like to mention is the concept of public policy rules. Usually the concept comprises fundamental mandatory rules. In many legal systems the qualification of a rule as a public policy rules implies an obligation for national courts to apply that rule ex-officio. The application or non-application of such a rule may not be dependent on the police raised by a party to the dispute. However the expression public policy rule is also used in different contexts. In the Eco-Swiss case the European Court of Justice had to decide on a request for preliminary ruling. The question at stake was if an arbitral award that was contrary to European competition rules infringed the public order. If this question was answered affirmative the arbitral award was contrary to the New York Convention on the Recognition and Enforcement of Arbitral Awards. The ECJ indeed ruled that an arbitral award that infringed European competition rules was infringing the public order and could therefore not be enforced in the European Union. Thus this judgment seems clear cut only relating to the enforcement of arbitral awards. In later case law the European Court of Justice caused confusion. In the Montfredi judgment the ECJ repeated and now outside the context of arbitration that article 101 of the treaty on the functioning of the European Union was a matter of public policy. So far it followed the Eco-Swiss judgment. However the court continued by ruling on the legal consequence of such a qualification. In this judgment the ECJ added that national courts should apply competition rules as being a rule of public policy automatically. The ECJ did however not elaborate what it meant by automatically application of European competition rules. It did not specify what type of ex-official application it had in mind. However if I take as a starting point that the qualification of EU competition rules as rules of public order is valid in the national legal order as well as in the European legal order I get from the case law the impression that the ECJ certainly had not type 3 in mind and most not probably even type 2 apart of course from the arbitration context. If you read the recent judgment of November 14 of this year in the case British Airways you will notice that the court explicitly rejects a plea that was not brought in first instance but only raised in appeal to the ECJ. The ECJ ruled that you cannot raise new arguments in appeal proceedings. This argument could not have been valid if the ECJ considered European competition rules as rules of public order of type 3. Because if it relates to an ex-official application of type 3 the court will not be dependent on the pleas brought forward by the parties. The second related concept is the principle of resjudicata. A judgment becomes final if no legal remedies are being used or if all legal remedies are exhausted even if European law is not being applied correctly. The ECJ recognizes the legal certainty which justifies the application of this principle as crucial to every legal system. Therefore the principle of resjudicata remains applicable even if the judgment appears to be contrary to EU law. I refer to the judgment of October 6, 2015 the Tarsia case. However I have to add if certain conditions are being met the state could be held responsible according to the Kepler case law. Not application but compensation seems to rule. A procedural limitation implying that please should be raised before the court that here's the case in first instance is accepted by the court in the Benelow judgment of the 17th March of 2016. The ECJ held that the national rule implying that the point of law that was raised for the first time during the appeal procedure is inadmissible. It's not contrary to EU law. Therefore the court accepted again in principle non-application of EU law. It's the same line of reasoning as the court held in the British Airways judgment I already mentioned. We see a similar line of reasoning in the Monocar styling judgment. A judgment of the 16th of July 2009, C12 of 2008. In this judgment the ECJ held compatible with EU law a national rule according to which a redundant worker was not allowed to challenge the due observance by an employer to inform and to consult staff representatives within the workers council according to directive 75129 relating to collective redundancy. Finally I would like to mention that the ECJ accepted only a limited obligation to reopen administrative proceedings if decisions that have become final appear to be contrary to EU law. I refer to the Kuhne and Heitz judgment as well to the Biancoff judgment. Now we have some overview of what we are talking when we are dealing with the ex-officio obligation of the law. It's time to turn to the provisions that interest us in this context, the state aid rules. I can be very brief about those rules. The rule of national courts first in law to state aid is a relatively limited one. Only article 108 paragraph 3 is directly applicable and of course the question might arise when we are dealing with decisions taken by the commission. In many cases, at least relating tax cases, there is no real interest in relying on article 108 paragraph 3. Those who are liable to pay tax cannot rely on the argument that the fiscal measure enjoyed by another business constitutes state aid in order to avoid claimant themselves of the text. So taxpayers themselves only have limited interest in raising the question. In ordinary state aid cases the argument that a certain measure constitutes state aid which is incompatible with the treaty is raised by competitors. However, competitors are not participating in tax procedures. So the last party we have are the public authorities. However, a tax inspector is part of the government. So it's a bit awkward that he has any interest in claiming that the state aid measure, a measure by the state of which he himself forms part, is illegal. However, in specific cases this might be different. The case I would like to mention with specific interest is the, and it's finished so I don't know if I pronounced it correctly, the Concrecrazion, the Esqualas Pias Provincia Britannia, which proves a fine example where there is some interest. Spain negotiated with the Roman Catholic Church an international agreement by which the church was exempted from taxes. After this treaty had been concluded, a new tax was being introduced in Spain. The tax on the introductions of applications for building permits. According to the Spanish Constitutional Court, the tax exemption in the agreement with the Holy Seed also was applicable to this tax on the application for building permits. The school operated by the church applied for a building permit to enlarge the assembly hall. The school started legal proceedings because it claims that the levy of the construction tax was contrary to the agreement between Spain and the Holy Seed. And the defense by municipality was that the non-imposition of the building tax was contrary to Article 103. I will not deal with the substantive issue of this case, which are also very interesting, but it's just a demonstration that under specific conditions, even in tax cases, the state's eight arguments might arise. There is one intriguing question, however. Does European law allow that the state relies on its own wrongdoing to strip private parties of rights vis-à-vis the state, to strip them of rights to which they are entitled under national law? In other words, is the state allowed to argue that because the state did not comply with its European law obligations, in this case the non-notification of state aid, to prevent that private parties are able to claim what they are entitled to? In the context of Article 103, this question has never been put forward to the European Court of Justice. However, there are some judgments which might indicate that the Court of Justice is under certain conditions opposed to a state that relies on its own wrongdoings to strip private parties of benefits they are entitled to under national law. So it's worth noting that this question is still open for debate. So in state aid cases, the most common type of cases, there are no parties that have an interest in the enforcement of Article 103. Does this make the state aid case very specific? I don't think so, and I would like to mention the judgment Heimskerck and Schaub. This judgment relates the export of calls to Morocco. The export of Heimskerck and Schaub consisted of 600 calls. Together with 40 calls of another company they were transported on an Irish motor ship. Heimskerck and Schaub claimed export refunds. They claimed but the export refunds were denied because the authorities hold that the calls were not transported in a way to prevent undue suffering. The capacity of the vessel for the transport of cattle had been exceeded by more than 100 heads of cattle. After administrative review the authority responsible for the grant of export refunds decided to grant refunds for the cattle that complied with the capacity of the ship. So refunds were refused for 111 calls. Heimskerck and Schaub appealed from this decision and claimed export refunds for the 640 calls. The national court analyzed the decision and the applicable law and took the view that not only with regard to the excess cattle but with regard to all the cattle export refunds had to be denied because not only 111 calls were not being transported under conditions to avoid undue suffering but all the calls transported by the ships were not transported under such conditions. However, none of the parties had any interest in submitting this plea. Heimskerck and Schaub not because they wanted more. The authorities not because they awarded refunds for a number of calls. So only an exoficial obligation of the national court could solve this problem. That's European law obliges national courts to apply European law in this case under a motion. The ECJ answered this question negative. There is no obligation not even in the this specific circumstances to apply European law as official. Legal certainty and legitimate expectations are opposed to it. So even limited interests of parties to rely on a correct interpretation application of European law does not call for a specific special treatment. The fundamental question does European law to be applied by national courts more rigorous than national law? Is European law so special that it should be treated differently from national law system? For an affirmative answer there could be some support found in the case law. I mentioned those judgments on the slides. If these judgments were to be interpreted that European law should be applied exoficial, it will be an obligation that applies to all provisions of European law because these judgments are founded on the very nature of European law. Moreover, if these judgments are to be interpreted as an exoficial obligation, it should apply to the European Court of Justice as well because it relates to the nature of European law. I would not advocate such an interpretation. In my view, nothing in these judgments indicates a procedural obligation for national courts to apply European law under a motion. It is a substantive obligation. European law takes from a substantive point of view precedence over national law. Basically, procedural rules are not harmonized in the European Union. European law has to be applied according to national procedural law. It implies the obligation, the power for member states to designate tribunals that have jurisdiction. It implies the right to lay down the procedure rules that covers the actions for safeguarding rights that individuals derive from European law. There are two important limits, the non-discrimination rule and the effectiveness rule. Of course, there are some specific rules in which the procedure rules are being harmonized. For instance, Article 2 of Regulation 1, 2003 relating to the application of the European Competition Rule and Article 2 provides some provisions on the burden of truth. It is important to note that the ex-official application is not precluded by European law. In the case for Holland, the judgment is already an old one, but a very clear one. It relates to the principle of equal treatment of men and women in matters of social security. There was a general old age pension payable from the age of 65, but the man whose spouse was resident and dependent received an increased pension. However, if the spouse had exercised an occupation abroad, the increase was reduced in proportion to the number of years the spouse worked abroad. This is clear cut discrimination, but it was not raised by the parties. Does European law preclude from assessing on its own motion where the national rules are in conformity with the directive? The Court of Justice said no. However, there is a restriction if national law applies for the ex-oficial application of European law. It should be done in conformity with the Charter of Fundamental Rights of the European Law. This was being ruled in the judgment online games, Handel's Game Bay Act. So if you are according to national law allowed to raise pleas of your own motion, you should give European law the same treatment. The first case in which the Court of Justice ruled that national procedural rules remain applicable is the van Schijndel case. The parties did not raise an argument that a certain agreement was contrary to the European competition rules. They only did so in appeal for cussation. In appeal for cussation, it was according to national law not allowed to raise new pleas. The ambit of the dispute submitted to the Court was limited. Were parties allowed to rely contrary to the national procedural rules on the application of European competition rules? The Court ruled that there is no obligation to apply the European competition rules if that is according to national law not possible. The condition of effectiveness, the limitation on the procedural autonomy does not require an exoficial application. Recently the Court ruled in the Farkas case on a similar issue. The national court in that case raised the incompatibility of national rules with the VIT directive on its own motion. The Court started again to stress the principle of procedural autonomy and it continued to say that the principle of effectiveness does not, as a rule, require a national court to raise on its own motion an issue concerning the breach of provisions of European law. Only such an obligation exists in exceptional cases where the public interest requires intervention. However, the Court did not specify when such specific exceptional conditions were at stake. In the case of the judgment of Petterbroek, we see a de facto exoficial application of European law. The case related to the application of tax rates that was higher for companies having a seat abroad than for companies established in Belgium. The police had not been raised in a complaint procedure and if they were not raised in the complaint procedure they should be raised in the appeal document that should be lodged within 60 days. Under these circumstances, the Court ruled that a rule that prevents a court from considering on its own motion, whether a measure of domestic law is incompatible with EU law when the latter profession has not been invoked, is contrary to European law. The Court applied the principle of effectiveness. So by applying the principle of effectiveness you may obtain the result that there is an exoficial application. We already discussed a substantive issue in the doctor case, the case relating to food and mouth disease. Again, the Court ruled that EU law does not entail a general obligation to apply European law even if the parties do not raise an EU law plea. The exoficial application is a matter of procedural autonomy. So we learn from this judgment that it does not really matter if you are dealing with civil law cases or administrative law cases. What type of exoficial application did the ECJ have in mind when it ruled in the case of doctor? I think it was type 3. It did not relate to the qualification of please raise by parties. It did not relate to the exoficial establishment of facts, but it relates to the exoficial raising of European law pleas. So no obligation of type 3 exoficial application. There is a specific field of exoficial application. It relates to consumer law. Directives 93.13, the inferred terms in consumer contracts. The exoficial application can follow from the need to assure the effect you feel the useful effect of a directive. And this effect you feel is the decisive factor in judgments relating to consumer law. The Oceano judgment illustrates how the court of justice concluded to an exoficial application when it comes to the application of this directive for national courts. The case concerns the purchase of an encyclopedia on installments, and the purchaser did not pay the sums due on the agreed date. The seller claimed that these amounts, claimed these amounts in a legal procedure, brought to the court of Barcelona to contract between the seller and the purchaser conferred jurisdiction on this court. Such a clause is according to an annex to the directive unfair. However, none of the defendants relied on this directive. So none of the defendants claimed that this clause that conferred jurisdiction on the court of Barcelona was unfair. Basically, because none of them appeared in court. The court ruled that there were several elements in the directive which call for proactive action by the national courts. The court referred to the weak position of the consumer, vis-à-vis the supplier and the seller. It called for the re-establishment of the equality between the consumer and the seller. And it considered that positive action unconnected to the actual purchase of the contract was necessary to restore the balance. So the court founded the obligation to apply provisions of this directive, ex-officio, on the choices underlying the directive. This type of ex-officio application is type three of the ex-officio application. The national court is obliged to raise on its own motion without being dependent on the parties pleased on law. The content of the ex-officio obligation in this type of cases not only is limited to type three, but also calls for type two. The court should supplement the facts that are necessary to decide the case on its own motion. What does the ECJ do itself? Which provisions or in what under its conditions the European Court of Justice applies European law itself on its own motion? If you have a look at the procedure for preliminary ruling, it's easy to recognize that the court will not answer questions that are not being put forward by the referring court. The court is not allowed to establish facts in such a case, but the court qualifies the questions by referring courts in legal terms and even corrects questions that are phrased on wrong legal terms. So in the procedure for preliminary ruling, we can see, we can discover the type one ex-officio application, the qualification of the questions in legal terms. If we have to look at the procedure for annulment of decisions by European institutions, we will see that the court of justice, and I mentioned just one judgment, only looks ex-officio at the legal faults that can be discovered from the decision itself. So if you discover by reading the discussion decision only, that there are some flaws in it, then the court will exercise ex-officio control. The court will not accept any further pleas ex-officio. Ex-officio application in European state aid rules. There is no clear ruling at this time. If you know some leads can be seen as judgments in which the referring court applied European law ex-officio, because the plea was only raised in the appeal procedures, but the court of justice did not answer the questions relating to the state aid provisions. A negative indication can be found in the Markman judgment. It's an old one. It relates to the German grants to investments in certain regions. And in this case, the court stated that it's to the internal legal system of every member state to determine which legal procedure should be applied. The question by the referring court was if every individual could directly rely on the incompatibility of state aid, or that there should be a specific procedural rule, specific procedure in the German law. The court however monthly refers to the question to the national procedural autonomy. The case commission versus Ireland is also an interesting one. It's an appeal procedure, and it relates to the exemption of excise duty for mineral oils that are used for the production of aluminum in the Shannon region. So it's a very limited state aid scheme. The commission initiated the procedure, provided for the Arctic Article 107, paragraph 2, and took a recovery decision. And only in defense, the Irish government submitted that the measure itself was not attributable to the state. And the court considered that the plea going to the substantive legality of a decision, which falls within the scope of infringement of the treaty, or any rule relating to their application within the meaning of Article 263, can be in contrast only be examined if it is raised by the applicant. So any substantive illegality will not be judged by the court ex-officio. It's a direct case, so it's difficult, it's not very clear if it's also relates to national court, but if the character of the provisions itself is decisive, it can be applied also in national courts. Ex-officio application, the public order avenue, we have seen eco-swiss, we have seen Manfredi, in which the court ruled that it related to fundamental provisions that are essential for the functioning of the internal market, and therefore should be qualified as rules of public order. The same line of reasoning can be defined in the consumer directive, the case law. Again, the court of justice did not really specify what it meant with public order. We have public order in the context of arbitration, but only there we have seen that the court accepts any obligation. In the field of competition law, rules that are qualified according to this case law as public order, the court only seems to accept a Type 1 obligation. Determines also can be an argument, but it applies to most provisions of the European law treaty. The question whether a national court is obliged to apply state age rules ex-officio might be of little importance, because there are numerous ways to redress a situation in which a national court did not apply state age rules. I briefly refer to the Locchini judgment, where national authorities granted aid for the modernization of certain steel plants. They notified the aid to the commission, but the procedure did not went on very speedily. Locchini applied to a national court to get the disbursement of the money, and it was awarded to the disbursement. The appeal against this judgment was dismissed, and then the commission took a decision in which it took a recovery decision. The competent Italian authorities took a new decision, and during the legal proceedings they were phrased with the plea that this was contrary to the Res Judicata principle. The court stated that under these conditions you could not rely on the principle of Res Judicata, because only the commission is allowed to rule on the compatibility of state age with the treaty, and while commission in this case ruled on the compatibility of state age with the treaty, or better to say the incompatibility of the state age, that decision should be applied by a national court. In essence, it relates to a matter of competence of national courts and the commission. Other alternative is that the judgment of the national court itself can be qualified as a state age measure, as has been done by the European Court of Justice in the recent BEI judgment, and of course even if the national court decided or did not decide on the applicability of state age rules, the commission can always take a decision. So the question of the ex-official application of state age rules might be a rather trivial one.