 Vsem bočne, da se odvoljimo na pomembnje, pa ne čestno na večeni. Ne čestno na večeni, da se na lati v Milbenji zbolo, in tako da se odvoljimo, da se bolo tega. Vsi ne bočne, da se odvoljimo na pomembnje, pomembnje v EU začo, Češtje, tudi nekaj smo prišličili o naštrih legetimatej spetatičnih. Kaj je naštrih, češtje, češtje, češtje, češtje, češtje. And, as soon as you have questions, comments, please just interact with me. What is our agenda for this morning? We will start by analysing the view notion of legitimate expectation, as it has been developed, in the case law, of the Court of Justice of the EU. Vse se priježimo, da sem oživila, da bomo pošliveni o zelo všečenje, da se priježimo pošliveni o zelo všečenje, kako se priježimo. Zelo so smo priježili, da se priježimo, ko se ne bila, da vam se priježimo, da se ne bila, da imamo način, zalejno začniti šečno začniti začniti začniti začniti začniti začniti na in predzojno nagrav. Tudi na naši najrejste predkelje končno, zelo tudi da je zeločno, nekaj objev zeločno, začniti začniti začniti začniti začniti začniti začniti začniti začniti začniti. Artykl 16, paragraph one, of the Procedural Regulation, as amended in 2015. And this article establishes that the Commission shall not require recovery of the aid if this would be contrary to a general principle of union law. And it is unanimously accepted, recognized, that legitimate expectations is one of these general principles. This means that the Commission cannot order the recovery if this recovery would breach the legitimate expectations of the beneficiary of the end. And as we will see during the second morning session, this provision has been extended, expressed by court of justice also to national court, which means that also national judges cannot order a recovery when this recovery would breach legitimate expectations. But this is something we will focus more specifically later this morning. Now, it is important to say that there is no legislative definition of the EU concept of legitimate expectation. Therefore, the concept that we will discuss is a concept which has been developed by the court of justice in its case law. And this is the case law that, indeed, we will analyze and discuss. However, before dealing in the case law of the court of justice, it is important, first of all, to point out the theoretical background which has led the court of justice to certain findings in matters of legitimate expectations. First of all, we need to clarify the function of the concept of legitimate expectation. The EU concept of legitimate expectation has the main function of protecting the economic operators carrying on activities within the internal market against the discretionary power of institutions, of the EU institutions. And we know that, indeed, for example, the commission where conducting its compatibility assessment has, indeed, a certain margin of discretionality, mainly when the economic analysis is carried on. If we think also about the very recent decision of the commission, it is clear that there is a certain margin of discretionality. For example, when the court of justice establishes that under certain conditions, the cap method should apply instead of the transactional net margin method. So we see a few institutions, F, discretionality, may have discretionality, when mainly the commission may have discretionality, when conducting the assessment procedure. Legitimate expectations have, essentially, the functions of guaranteeing the foreseeability for economic operators. The foreseeability of, indeed, EU state aid law. So this is the main function. There is also another important aspect to clarify, which is that legitimate expectations only air prevails when an aid is a lawful, so when an aid is being a lawful implemented. And these derives from the procedures contained in Article 108, paragraph 3 of the Treaty on the Function to the European Union. According to that, the commission, any measure which is in real fashion an aid, must be notified to the commission. And only if the commission concludes the procedure in a positive assessment, which means the aid is considered compatible with the internal market, that measure can be actually implemented. And so, only from the moment in which the commission has decided, has assessed, that the measure is compatible. And only if the measure is compatible, that the aid can be implemented. Therefore, if the procedure under Article 108, paragraph 3, is followed, there is actually no reason for relevance for recovery, and consequently no relevance for legitimate expectations. According to Article 16 of the procedure of regulation. Therefore, yes, it is clear that legitimate expectations are only relevant when there is need of a recovery, and in connection with the need of recovery. Consequently, the reasoning of the Court of Justice in developing the notion of legitimate expectations is exactly based on Article 108, paragraph 3 of the Treaty of the Functioning of the European Union. The main reasoning, on which we will focus more specifically soon, is the following. The procedural rule contained in Article 108, paragraph 3, it's a clear obligation of notifying any measure, which is a prima facie aid. It is a clear procedural rule, and therefore, any diligent economic operator is able to know whether a certain measure has been notified or not. This also because, as often the Court points out, this notification, this information is given in the official journal of the European Union. Therefore, any diligent economic operator is able to know if this notification has taken place or not. Consequently, the Court states, a diligent economic operator can claim legitimate expectations only very exceptionally. And that's why the Court of Justice, in its case law, constantly refer to exceptional circumstances. Only exceptional circumstances can give rise to legitimate expectations. The Commission versus Germany is actually the judgment in which the Court of Justice has issued some of the rulings, which are still at the basis of the case law of the Court of Justice, concerning the definition, the drawing of the notion of legitimate expectations. The Commission, through only some newspaper, that Germany had granted to a German company subsidies and credit guarantees. The Commission asked information to Germany, which referred that in fact those measures were granted to the German company. Consequently, in 1987 the Commission issued a decision in which the Court of Justice has a lawful and incompatible and consequently, indeed, the Commission ordered the recomb. However, Germany did not agree with the decision, but it did not even recover the aid. And for this reason, the Commission started proceedings before the Court of Justice in order to make the Court assess that Germany had breached the treaty, because it did not have implemented the decision. And Germany's defence was substantially based on national law, because Germany stated that the German, and therefore the national cost of legitimate expectations, did not allow the German companies to order recomb. Let's see what was replied of the Court. The Court's route, and I would like to read with you, because this is one of the fundamental messages used by the Court, and which is actually repeated in any judgement, also in the most recent ones. It must be noted that in view of the mandatory nature of the supervision of state aid by the Commission under Article 93, which is now under Act III, undertakings to which an aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful, unless it has been granted in compliance with the procedure laid down in that heart. And in general, this is not normally able to determine whether the procedure has been followed. This is the core passage, which explains the position of the Court of Justice in matters of legitimate expectations. The reason it needs, as we have just read, is that there is a procedural rule. This procedural rule is rather clear, and it has the purpose of guarantee that any national measure that may be an aid is checked and assessed by the Commission. In light of this, legitimate expectation can arise only exceptionally, because only exceptionally a diligent businessman does not know that this procedure has been followed. This is the main reasoning of the Court in matters of legitimate expectations. There is also another kind of passage, which is important and that clarifies the position. The Court states, it is also true that a recipient of illegal pyramid aid is not precluded from relying on exceptional circumstances on the basis in which it had legitimately assumed that the aid to be lawful, and thus declined to refine that aid. If such a case is brought from a national court, it is for that court to assess the material circumstances if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice. Another very important passage. Legitimate expectations can arise only in exceptional circumstances. But, indeed, it is important to protect legitimate expectations. This legitimate expectation must be protected also by national courts. And when these national courts are competent and acting as EU courts, it is up to them to evaluate whether these circumstances are exceptional or not. In addition, always in commission versus in Germany, the Court of Justice states that it is not up to a member state to rely on the legitimate expectations of the beneficiary. This is also something very important, that a national judge should take into consideration. It's not the member state that can claim the legitimate expectations of the beneficiary. Only the beneficiary can claim, well, you should not order the recovery because I was legitimately expected that the aid was lawful. So the Court distinguishes clearly the position of the member state from the position of the beneficiary. And as we will see also in another case, the main reason is that during the compatibility assessment, the member state is always in direct contact with the commission. So for the member state is more clear what the position of the commission will be. But the beneficiary is only indirectly involved in the assessment of the commission. This is only one of the reasons for this distinction in the position of the member state and the beneficiary. I say only one because it is clear, and these are mainly the cases that involve national courts, that legitimate expectations, we will see it immediately, may concern only the period of the standstill clause. So before a procedure of the commission actually starts. Because we will see it during the second part, indeed, the main function of national courts to protect the vision for the period before the assessment is met. Because we know that at the end it will be the commission which will order the recovery. But how to protect beneficiaries or competitors of the beneficiaries before that period? This is something we will focus on very specifically, very specifically later. Now we go on with the EU notion of legitimate expectation. Because here the Court of Justice said also something which is very important for national court. And it states that Germany cannot rely on national law in order to justify in case which have EU elements only the EU notion of legitimate expectations which is the notion the Court develops. It can be applied even by national judges when these national judges indeed act as EU. So in cases which have EU elements. These are the main findings of the Court of Justice. The findings that, as I said, represent the basis, the fundamental case law in matter of legitimacy. So these points, which I would like to read with you are, legitimate expectations of the beneficiary of a state aid cannot be claimed by the member states which are lawfully grounded in order to avoid the problem. Very important problem. Legigent expectations can only be entertained by the beneficiary of the aid in exceptional circumstances. In national proceedings, it is up to the national courts to evaluate the occurrences of these exceptional circumstances. In EU proceedings, national courts must apply the EU notion of legitimate expectations and not the national law. Is it everything clear to you now? Do you have questions? This afternoon, on this day, I will be doing it for this as well in the testimony in case in the national court. We get some particular cases if we don't understand. Yes, yes. Indeed, now we are developing the theoretical framework and then we will see how these apply more. What do you mean with national courts is the EU courts between those marats? I mean that there are cases in which national courts act as a new court because it applies and it guarantees the correct application of EU law. So under EU law it is said that in this case national courts act as an EU court. This is something very important that we will point out again because what it is expressly said under EU law is that the role of national court in stated in general with concern to legitimate expectations more specifically is a complementary role. So it's not a secondary role, it's a complementary. National courts, we will see it very clearly a little bit later, deals with protection of beneficiaries in a specific moment which is the moment before the decision in which no other EU institution has competence and therefore it is only up to national courts which have an obligation. And that's why it is important to understand the EU notion of legitimate expectation because this is exactly the notion that national judges must apply, they have an obligation to apply in order to protect beneficiaries in the period before. And that's why you state that in such a situation a national court is to be considered as a EU court. Is that what you mean? Yes, because there are cases in which the national judge is not substituting any EU institution. It is taking an autonomous decision which can only be taken by a national court. And legitimate expectation is exactly one of those cases. And in the second part we will emphasize and we will see very specifically what I'm speaking about. But yes, first of all indeed it is important to clarify what is the notion of legitimate expectation, which is applicable. And this is the starting point. There is a rule, only exceptionally that's a rule you cannot apply because that's a rule as the function of guarantee that the measures are assessed by the commission. So that's the priority, let's say. Then only exceptionally we can recognize that that's a rule maybe not applied. Because indeed the recovery is the consequence of the... I think the same principle, the national principle is the same, but in the end it's a much broader appliance. In the case of the national court it's very important to see the effectiveness of the rule of law. And there must be a doubt. We will see that in the case, there is constant reference to the effectiveness of the rule of law. The reason why it is exceptional is that a member state, the reason for which the position of member state is, the position of the court vis-a-vis a member state is stricter is exactly because you law recognizes up to member states to guarantee notification. And that's why the court says we cannot accept that the state claim legitimate expectation because this would imply that we accept that the state can justify itself for not having notified the measure. And the court states, if we would allow this, article 108 would lose its effectiveness. And indeed, yes. We will see this one because, yes, we will deal with this. National court, we will see as a thermos problem. It must apply the national concept of it. It must guarantee protection at national level. But on the other hand, there is the commission, which is the only one, exceptionally in the country, that can assess the compatibility. So what happens if there is conflict? Well, I can anticipate that in principle, you law must always remain. This is also in light of the principle of loyal cooperation. So let's say, for example, if a court of persons decides that there is, that they cannot order the recovery because of legitimate expectations. But after that, there is a decision of the commission. And then the commission, on the contrary, consider the end unlawful, but does not recognize legitimate expectations. And therefore, orders the recall. What happens? What should the national court do in this equation? This is not really verified in the procedural rules of unlaw. But there are some principles. One is indeed primacy of unlaw. The other one is loyal cooperation. So the commission, for example, in the 2009 notice on the role of national court suggests that in this case, if, for example, the proceedings go on and a national court of appeal must decide, in this case, if the court of appeal is not in the commission, the court of appeal may ask the court of justice in order to avoid the conflict. So there is a little bit to the law of the principle of loyal cooperation, which does not serve to always the situation. But this is what it suggests. Like in very precise procedural rule. And indeed, we also have to take information in the key notice, which has said that, in any case, if the judge decides after the commission has issued its decision, the national judge can never judge in conflict with the decision of the commission. Even if the national judgment would be resudicata. So if there is a judgment, it has become nationally resudicata and it follows a decision of the commission. This decision may be appealed. So in the end, it is the court of justice that decides. In the decision of the decision of the national judge, and even if the judge may disresudicata, you law prevents. So there are some rules, although not all conflicts are solvable under the present procedural rules of you law. And we will also deal with these more specifically in the second part. But yes, it's a very crucial point for national, for national, for national court. The national court cannot claim or claim for our national court. First of all, we are not in conflict with law. That's the difference between both of them. As I said, even when the judgment is resudicata, if there is a conflict with you law, you law must prevail. But indeed, there are also intermediary situations that, again, are not completely solvable by the you procedural rules. And we will see there is even some inconsistency, I think, between the judgment of the court of justice. But, yes, I just said, and this is also the purpose of this morning. National judges have always an important tool, which is preliminary questions. And in this, I would say that the role of national courts as EU court is also a role as EU court to help develop EU law through preliminary questions to the court of justice. Also in these, national courts exercise their competence as EU court. This is something that actually also court of justice always emphasize preliminary ruling through preliminary rulings. National courts have an extremely important tool in order to clarify situations. And there are many, many situations concerning the relationship between national and EU institutions, national courts and commission and EU courts, that may really be clarified through preliminary rulings. And this is something that we will point out this morning as well, what's made national courts ask for preliminary rulings. Please, if there is a procedure of rule, when you use the procedure, the damages against national courts depends on national rule. So if there is a national rule to establish procedure in order to play damages, for example, against a judge. There is a new procedure, again, of a representative of the EU court in case, for example, the commission, after the decision has become a defendant because any decision of the commission can be viewed within two months from the date of notification. If it's not appealed by one of the parties, which is directly and individually affected by that decision, the decision is definitely. In this sense, only possibility, so there is no possibility for national courts to decide in conflict with the decision of the commission. The only thing that the parties involved in the affected by the decision can do is claim damages against a new institution for damages. There is an EU procedure for damages against EU institutions. So, yes, indeed, now it is very important to see when those exceptional circumstances as recognized by the Court of Justice as giving rise to legitimate recommendations. RSV versus commission is the very first case in which the Court of Justice has recognized the existence of legitimate expectations. RSV was a Dutch company with its registered office in Rotterdam, and it was involved in activities concerning shipbuilding, shipwrepper, and heavy engineering activities. The company was receiving aid already from 1977. This is a case of 1985. So, as from 1977, the company was receiving aid from the Dutch government, indeed, but under the statutory program, which had been approved by the commission. So, it was an aid, but the aid had indeed been considered compatible, approved by the commission. RSV, the entire group, was incurring losses, and therefore in 1979 the Dutch government decided to incorporate a new company in order to take over those activities. The losses increased, and then the Dutch government in 1980 simply decided not to incorporate anymore the company, not to take over the activities that just terminated the activities of RSV and its group. So, RSV became the supervisor of the group in order to coordinate the termination of the activities of the group. And then in order to cover the costs that RSV was incurring for this provision and termination, the last defense of the group, the Dutch government decided to grant additional aid to the company. Aid, which were meant, as I said, to cover the additional costs for terminating the activities of the group. This new aid was notified to the commission, but it took 26 months for the commission to decide that the aid was incompatible, because in the end the aid was assessed as incompatible. It takes 26 months, so more than two years. The aid, as I said, was assessed as incompatible, and therefore RSV appealed the decision of the commission, and it claimed legitimate expectation. And in this case the Court of Justice unoradjali, that because it took 26 months for the commission to decide this delay could determine the legitimate expectation that the aid was in the aid. It is clear from the subsequent case law of the Court of Justice that it's not the delay as such that can justify legitimate expectations. And this is mainly clear from a subsequent case, Germany versus commission. In this case it took more than three years for the commission to even start the formal procedure of assessment. So the aid was notified, but in the end it took more than three years for the commission to officially decide to start the formal procedure. But in this case the Court of Justice did not recognize the legitimate expectations, because the Court of Justice said that this case was different from the RSV versus commission case. Only in the RSV versus commission case there were exceptional circumstances. Why? Because the Court says, as from 1997, the concerned sector was receiving aid approved by the commission from the Dutch government. The new aid, the new decision concerned new aid to cover conditional costs connected to the same operation. I will explain more precisely. I already said that RSV was already receiving aid, that restructuring program was already approved, and we said that the new aid only concerned additional costs. They were granted only to cover additional costs, but under the same restructuring program. So in RSV versus commission, the commission defended itself by stating, well, it's true, it took very long to decide, but it was because the operation was in which RSV was involved, and the entire group was involved, was extremely complicated, and therefore it took time to understand the problem, the operation, to make a final decision. What the Court replied was, yes, it's true, the operation was very complex, but you had already examined that operation before, when in 1977 you decided that the restructuring operation could be approved. So that was an operation that is already new. There was no additional analysis to make, and this is exactly the reasons why the Court considered only RSV versus commission, in RSV versus commission existing legitimate expectations. In addition, in Germany versus commission, the Court states that legitimate expectations of the recipient cannot be compared to the legitimate expectations of the state. Again, why? Because Germany, as I said, notified the aid, and therefore it was constantly in contact with the commission. So what the Court states, in this situation, we cannot say that Germany had a legitimate expectation that the aid was compatible, because Germany was constantly in contact with the state. This is not the situation of the recipient, sorry, with the commission. This is not the position of the recipient. Because the recipient, as we said, is not directly involved by the commission in the assessment procedure. That's why the position in claiming legitimate expectation is different. Yes. In my research, for example, of the Senate, which had a position in the House of Representatives in 2008, the desk, now, is not to introduce, let's call it a tax call, to consider it an innovation in the House, in the management of our role, and the group of comment. It's notified when you bring the commission in the House. Then the work of discussions, you bring the commission, you bring the commission in the House, and you bring the commission in the House. And in that circle, it seems that it was settled. The matter was introduced, which is still part of our portfolio in that circle. But we never formally received the presentation that the commission would be doing. This has been a bit of a discussion in the literature, because, yes, that's why we are lying on making use of the innovation box. And we have fears that they even, in the future, will be in commission, will still take action. Or can we say about them, it was notified, and, oh, I didn't do anything in the meeting, because since we are now, we are doing it because it's okay. Are we saying that in this case, because we are making these discussions, in terms of not being able to claim a legitimate explanation? Certain legitimate expectations cannot be claimed by the Netherlands, because the Netherlands was directly involved. Concerning the beneficiaries, yes, in fact, we can say that they were aware of the fact that there was no final decision, because sometimes the beneficiary doesn't know. But they need to understand the problem. Well, it's, first of all, if ten years, well, we also have to consider the prescription period, but, because after ten years, after the commission knows about a certain measure, recovering with lots of the order, there is a ten years of description. So that could be something relevant. It is difficult to say if only on the basis that it was a public views, beneficiary can exclude legitimate expectations. Probably I would say it would be important to take more cross-link into consideration of the relationship between the beneficiary and the state. We should also evaluate another very, very important case, in which, again, this is another one of the other brave cases in which legitimate expectations were acknowledged by the court, which is the case concerning the situation in which the beneficiary has received precise assurances from one EU institution. And this was the case in the very important case concerning the Belgian coordination centres. As we know, coordination centres, which existed not only in Belgium, but in many other EU member states, were companies which could enjoy a beneficiary fiscal regime. For example, in Belgium, the coordination centres could enjoy a favorable determination of taxable income on the basis of the cost plus methods. They were exempted from taxation on, as the Belgian judges certainly know, they were exempted from taxing the property in the building state reducing professional activities. Or, for example, the dividend interest and royalties distributed, were exempted, with some exception, from taxation software, the most of the series of advantages recognized to the coordination centres. It was relatively easy to enjoy these advantages. The Belgian legislation established some characteristics, for example, coordination centres had to be part of multinationals, having a certain number of employees in Belgium, et cetera, et cetera. So, existing these objective characteristics, the company was individually allowed by the Belgian authorities to enjoy these beneficial tax regime. It is important to say that in the 80s and precisely in 1984 and 1987 the commission was called to assess the tax regime of the coordination centres. The commission expressly assessed those measures as compatible with the internal market. So, the Belgian regime was expressly considered compatible by the commission in the 80s. In 1990 there was a parliamentary question and the commission expressly confirmed that the measures were compatible. But then in 1997 the policy changed completely. The code of conduct was adopted and the commission started to review some delegates in national measures. The coordination centres was one of those measures. And for this reason the commission started again the assessment procedure and in 2003 the Belgian coordination centres regimes were considered incompatible. That's why well, but as we said this is important to say legitimate expectations in this case were expressly acknowledged by the commission. And the commission stated that those coordination centres which were enjoying the favourable tax regime on the 31. December of 2000 could enjoy this regime until 2010. These were dates established by the council. So that's why these are the terms. It was a political decision of the council. The reason why the commission recognized legitimate expectations is indeed there were precise assurances. On the basis of these assurances coordination centres made investments structured their group in a certain way concluded agreements with third parties. Therefore we need to guarantee we need to give them time to dismiss this organization. And that's why legitimate expectations were recognized, were acknowledged by commission. On the basis of precise assurances and in order to guarantee time to the companies to dismiss their organization and invest it. But still the decision was appealed by the Belgian Belgian Kingdom and Forum 187 which was an association representing the Belgian coordination centres. Because they wanted that they asked for the court to decide that legitimate expectations were extended also to other coordination centres. And in fact the court extended legitimate expectations and it proved that they would be acknowledged also by those coordination centres which had already applied for renewal because we didn't say this before but the regime were granted individually on the basis of a Belgian decree the authorization lasted ten years and it could be renewed for ten more years. So the court said that legitimate expectations could be acknowledged also to those coordination centres which at the moment of the notification of the decision of the commission had already applied for renewal or whose authorization expired at the moment of the decision or just after. Why the court decided to extend legitimate expectations and also what we said earlier because the authorization regime was almost automatic on the basis of the existence of more certain conditions subjective conditions number of employees dimensions etc. The regime was almost automatically granted there was no discretionality this is what the court emphasized from national authorities for this reason it was legitimate for those coordination centres to expect that a renewal would have been granted from Belgian authorities and that's why the court extended even farther their knowledge of legitimate expectations in these in these days. And how far exactly was there a period because the commission said legitimate expectations can be recognized only to those centres which were enjoying the regime on the 31. December 2000 the court said even those coordination centres which had only asked for a renewal so they were not according to the commission they would have not been able to obtain the renewal the court said yes because they would expect that the renewal was almost automatic so for those companies they had a 10 year extra period in fact in the decision of the commission was until the end no longer than 2010 for the court was yes 10 more years but no farther than 2010 because that deadline was decided previously by the council. Yes the court also said that in any case legitimate expectations can only be acknowledged if there are no overriding public interest of the EU which must prevail over the interest of the beneficiaries. Also in this respect the court it's a veil it's not clear these overriding public interest are not clearly mentioned at least with specific reference to state aid but we can imagine that in case competition policy must prevail so indeed they will be overriding interest reasons connected to competition policy. Another important case could be this is quite often been referred to the court of justice the case in which the commission the decision of the commission is a positive decision so according to the commission but then either the general court or the court of justice annules the decision there were cases in which beneficiaries said well but the basis of the positive decision of the commission we can claim legitimate expectations the court as always categorically excluded coherently I would say simply because it is very well known that the decision under the treaty and yes this is the question we have already we have already partially addressed according to the court any diligent businessman can understand if and when a national a national aid was notified but as we said what about the qualification what if beneficially simply thought that it was not an aid because it was objectively difficult to understand whether that specific measure was an aid under article 107 paragraph 1 as said this is something that the commission us expressly addressed and in different cases explicitly recognized legitimate expectation this issue has also been dealt by Advocate General the Advocate General concerning the SFEI case which we will deal with later and the Advocate General stated it is for national courts to assess whether a diligent businessman ought to have realized that the measures in question constituted aid which could be granted only in accordance with procedure laid down by article 108 in the present case it seems helpful whether that is so first the measuring question are not ones which self evidently constitute aid so one of the Advocate Generals expressly addressed this question but in the end in that case the court was silent on this specific issue so in fact we don't have any we don't know what the position of the court is or may be in this specific situation and as we said preliminary ruling is always an important tool for national courts and this could be one of the possible questions in specific circumstances the question is we say that there is a procedural rule which is clear which is a measure which is a prima facie aid 407 paragraph 1 must be notified and the court of justice always businessman should be able to know but does this pressure process that any diligent businessman should be able to understand whether a certain measure should be notified or not and therefore if a certain according to the court yes but we have to consider that there are specific cases in which it is objectively difficult to understand that so can we give to the can we say that the legency of the businessman should be so broad also to include such a technical because it's not anymore a matter of the legency but of technical knowledge about what the state aid is so the point is to what extent we can consider the legency of the businessman also to cover cases in which it is objectively difficult to understand if that measure should have been notified can you give an example of what you mean with a situation in which it is objectively difficult for example we don't know if he is selecting or not so the question is actually is the diligent businessman also a lawyer it is also required that we have such a technical competence when dealing with this issue the SFEI case is according to law in which the court of justice has defined as strong the competence of national court with specific reference to legitimate expectations and this is the case in which the court of justice has expressly said that Article 63 in which the court of justice also applies to national justice so we saw earlier this morning that according to Article 16 the commission cannot when this recovery would reach the legitimate expectations of the beneficiary of the because we saw that legitimate expectations is one of the general principle of EU law where on the basis of the judgment of the court of justice we know that this article does not apply to all the commission but also to national judges so also national judges cannot reorder the recovery when this would reach the legitimate expectations beneficiary in cases with new relevance we saw national judges act as EU judges and therefore they must apply the EU concept of legitimate expectations as in the case of the court of justice so the concept that we analysed discussed this morning in case of courts emphasise that national judges should refer to the legal questions to the court of justice when being with the competence of national courts in the fiscal state field we should clearly distinguish the phases in which national judges decide before the commission has issued its decision from the days in which the national judge decides after the commission has issued its decision and referring to the first category of cases so when the court, the judges the judge master is called to decide before the commission has issued its decision we can certainly say that the court of justice has recognised expectations in significant role of national courts the national courts national judges must protect the rights of those persons who are affected by the rules of Article 180, Article 3 so the rights concerning the notification of procedures so all those of the rights of those persons were affected by that the measure has not been notified or it has been implemented during the same period and it is important to emphasize that this is an obligation for national courts this is expressly said by the court of justice it is an obligation because as the court recognised already in the Costa Ana case in 1964 that the provision which is now included in Article 180, Article 3 has direct effect so on the basis of the immediate enforceability of Article 180, Article 3 there is an obligation of national courts to protect the rights of those individuals affected by rights of Article 180, Article 3 so we are sitting in practice just to give a very simple example in the case in which the competitor claims before a national court that the age is unlawful it shouldn't be notified so the competitor can claim that the age is not granted that the recovery is off so the national authority order the recovery and then the beneficiary can appeal the recovery and ask for example to stop it because of its legitimate expectation not to implement the recovery order because of the legitimate expectation so this sounds very objective and it is but can you explain how this obligation is to be related to a presentation of Mr. Fierstein in the former lesson concerning the exoficial application of illegal and the reluctance in this presentation of in a line in a line hundred and eight in three exhibitions there seems to be the tension between the line you present here and the line Mr. Fierstein presented in the former lesson when because this is not something that is up to the national judge the court has expressed in said that there is an obligation so it is not a matter of exo official there is a matter of exoficial for one person which is the identification of the national so if the measure is an age must be notified but in this case the court has expressed in said that it is up to the national judge to do so so this is something that the court can do indeed the evaluation of the national judge can never concern the compatibility of the age only the commission can decide on the compatibility the national judge can only decide on the unlawfulness deciding on the unlawfulness means that there is a prima facie evaluation of the fact that it is an age, the measure is an age under article 107 power of 1 but indeed it's not always so simple to identify prima facie so this is the crucial question in this assessment moment because we could say ok, in any case there is a doubt there is the judge should we could think about the notification but this is to be valid for the member state so in case of doubt the member state is still not important but not for the national judge because the national judge must decide if it's prima facie in order to see if it should or not must or not order the recovery so the national court must make a decision but certainly it's not so easy but this is really the crucial issue concerning the competence of national judges and the court says in case of doubt there is the preliminary ruling so there is a lot of judge when anything happens under article 10.1 and there is not a lot of rules in this moment because of the competence of the judges under article 183 you need to decide if the measures should be noted under article 171 in order to see if it's an aid that it should be not different this is the relationship but it's a very important issue but I would also say it's also something that again emphasizes the role of national courts and because in this case it's really the international judge to decide as and in your court so apply your law and yes there is always a possibility to refer to the court of justice but it is exclusive competence of the national judge to assure in these specific situations the correct application of your law and the production of that status and we can see again an important passage we can read together an important passage of the court of justice based on what we said on the application of article 108 which is an obligation to protect consequently the court of justice assumes that national court must have the reach of article 108 parallel 3 that all necessary inferences will be drawn in accordance with the national law as regards to the legal measures giving effective way the recovery and therefore also the legal measures or the application of possible legal measures and why is this so important because in the busak and to the Mercedes the court expressly said that the commission cannot order the recovery only on the basis of the fact that the aid has not been notified so the commission must complete the entire compatibility procedure evaluate alofomnes and incompatibility only after the entire procedure is completed then it can order the recovery but not before that moment but then what about the case that we were dealing with what about the period of the stance of the relation about compatibility possibility of recovery legitimate expectation for the period inter in the stance of relation where the protection of experience for that period is completely up to the national court so an extremely important role because actually the commission ask power to release preliminary recovery functions under very strict conditions so it hardly applies that condition which is article 13 of the procedural regulation otherwise the protection of rights in videos affected by a bridge of article 18 is completely up to national court and it is actually very much emphasized by the court of justice the court of justice always say and then I come back to what we said about being EU and EU of course that the role of the commission and the role of national justice is a complementary but different role because only the commission can assess incompatibility the national court can never evaluate the nature on the basis of incompatibility parameters and therefore 172 or 3 or the other relevant conditions on the other hand the commission cannot order recovery before having completed the procedure therefore only national court can decide for the period concerning unlockement so it is very much emphasized by the court of justice in its and consequently also emphasized by the commission in 2009 on the role of national court in which the commission can read it on the basis of the court of justice expressly that national dragr must guarantee the full recovery and consequently also take into consideration protection of legitimate expectation independently and regardless of any compatibility assessment conducted by the commission what does it mean this has been very much has been clarified by the court of justice in the SFI case the court has stated the initiation by the commission of a preliminary examination procedure under article now 108 paragraph 3 or paragraph 2 cannot release national courts from their duty to safeguard the rights of individuals in the event of a breach of the requirements article 108 paragraph 3 as direct effect is immediate enforceable this immediate production must be granted to tax payers which means that a national judge can wait for the final decision of the commission only if there is a real reason to wait but not merely in order to wait for the commission of the decision in order to avoid conflicts this is not possible according to the court of justice because article 108 paragraph 3 as direct effect immediate protection must be guaranteed and only national courts can guarantee this immediate this immediate protection order recovery taking into consideration legitimate expectations and the insight that the recovery should not be implemented could declare but this is more indeed for administrative judges the invalidity of the measures that implement a lawful aid a decree any legal internal legal source must actually we will see that invalid can take into consideration damages plan but can also decide on interim measures so it can order the recovery or the interim recovery for example the commission also states if exactly speaking about the immediate impossibility so the fact that the commission cannot really suspend procedures only because the judge wants to wait there should be a reasonable reason motivation in order to suspend and therefore to delay the protection of the taxpayer the commission suggests in this case if the national judges judge considers necessary to wait for the decision of the commission to take at least interim measures and the commission even says the court could order the creation of a blocked account and order the recovery the interim recovery so the money is put on a blocked account and then depending on the decision of the commission that so there are many many different situations, indeed it depends on measures or procedures or competence of city or tax or administrative judges but there are many many measures that can be taken maybe what is also interesting to emphasize is that indeed all these powers are emphasized if they are correctly ruled under national law because of the procedures so this is the substance but the procedure so U law gives the substance of the power but U law but national law should make this power procedurally possible so it is also very important that member states uses appropriate procedural rules recovery procedures because then it is national law that says exactly how to proceed that guarantees that these substantial powers then are formally implemented under national law yes, it is until the commission has made the decision again the connection between U law and national law and national procedural law is extremely relevant so the procedure as I said in order to implement correctly the substantial law must be appropriately defined under national law so we said yes that the court and consequently the commission emphasize that the court must currently release protection regardless of any regardless independently from any decision taken by which is going on before the commission and this is emphasized in the SFEI case which also says again any other interpretation would have the effect of encouraging the member states to visually card additional implementation of plan A and undermine the effectiveness of article under A this is also always a constant reference of the court which in light of what we said earlier this morning is also important important to highlight therefore we saw that yes again the court emphasize the autonomy the important law of national court which we said cannot wait really for waiting the final decision of the commission this protection must be done why the commission is in the process of taking a decision exactly because article under A is immediate impossible this autonomy of the national court is very much emphasized in this case the FNCE case which is a very interesting case this case started before the court of justice with a preliminary ruling of the French state court the administrative court of second instance state council who said that I will translate state council so the second the second level of administrative and because France has introduced parafista advantages, parafista charges in favor of a public fund which was operating in the sector of sea fishing in the end the measure was actually notified the French government to the commission but in the meantime while the commission was deciding the French government adopted an interministerial order and the order the implementation of the parafista charges so the measures were implemented during the stand still period while the commission was still deciding in the process of deciding and in the end the commission concluded that the measures were comfortable with the internal plan but FNCE which is the national fund for international commerce an international French institution started proceedings before the administrative court and which then arrived at the state council and the state council referred the question to the court of justice and it asked whether article 100 should be interpreted as the term the invalidity of the national measures which are lawfully implemented national measures so we said the commission was in the process of deciding but the interministerial order was issued and the interministerial order implemented in the end so the court asked article 108 article 103 is which imply an obligation for the national judge to order to declare the interministerial order as invalid and is this the case even when eventually the commission concluded the procedure possibly so by stating the measure although a lawful is compatible with the internal market very interestingly the court stated any measure which a lawfully implement national measure is invalid and this must be the measure must be declared as invalid by the national court and this is even to when in the end there is a positive decision of the commission this was a very important case because it really distinguished the period of unlawfulness and the period concerning the decision of the commission and it really emphasized that before the commission there is a period in which only national courts have guaranteed protection of the rights of individuals so there is a very important differentiation between the two moments and between the competence of the commission and the national court and really emphasizes the complementary relationship between the two institutions unfortunately oh, yes I think it is interesting to read also this passage but the content is what I said it must be stated that the commission's final decision does not have the effect of regularizing ex-force factor the implementing measures which were invalid because they had been taken in which of the provision played down by the last sentence of article now under 8 since otherwise the direct effect of that provision will be impaired and the interest of individuals which are stated above to be protected by national courts could be disregarded so the decisions of the commission do not have virtual effect this is the conclusion of the court at least in this judgment not virtual effect and again the court emphasized any other interpretation would have the effect of according a favorable outcome to non-observance by the member state concern of the last sentence of article 93, and would be pride that provision of its effectiveness I think here again coming back very briefly to what we were saying earlier it is very much emphasized the fact that the obligation is for the member state which creates concerns about what we said before on the position of the religion of the religion so for the reason obligation of the member state but in fact the legitimate expectations the concept applies almost as strictly for the business than as for the member state but as I said in the FNCE case the court emphasized the autonomy of the competence of national courts unfortunately it is difficult to see the coherence between that previous case and see the self case which has been decided relatively recently in 2006 in this case the court makes an important decision between possible decisions of the commission which are concluded with an evaluation of the compatibility of the aid and negative decisions and the court states that when the commission again a negative decision and after this decision the national court should evaluate legitimate expectations in this case the court said that it's again completely up to the national judge to evaluate whether the circumstances gain rise from not legitimate expectations so when there is a negative decision between the commission and the judge has to decide after this decision the autonomy of the national court is again a knowledge by the court of justice but things change on the basis of this judgment according to the court when the commission has concluded the decision and in this case the court has taken a very particular position because it has said that if the commission has assessed that the aid is compatible there is no obligation for national courts to order the report and if we think of it that this conclusion is not completely coherent with the fact that the commission that the court has previously emphasized the fact that there is the period of the stasis during which spares and widows must be protected the reasoning of the court is the following and it is true that there is a period during which we must protect individuals for the period of aloffments because it is clear that even if the measure is in the end considered compatible certainly it has been applied earlier that the competitors had started earlier to be in a disadvantages position if the procedure under article 108 power 3 is followed the measure is implemented only after the decision of the commission and therefore the disadvantage for the competitors starts only as from the moment of the notification of the commission so this is something that must be taken into consideration the court has said, yes this is true but the only advantage that a competitor would have or ask when the measure is aloffment implemented is that the beneficiary does not pay interest for an amount that it could otherwise be received from a bank for example so if we see earlier an amount from the state if this beneficiary could not come from the amount received by the state it could have taken this amount privately from a bank and it could have paid interest so the only advantage that the beneficiary asks in the extensive period is the position of the court and therefore national court in this case must order recovery of interest so according to the court of justice no obligation to recover the amount only obligation to recover the interest the court also adds it is possible that the national court may order recovery under the national definition of legitimate expectations so these are the main findings of these judgements which certainly limits and recognizes the so for example in Starter's case concerning the Dutch Government and suppose that we import this ruling and we'll decide that it is not stated then still the Dutch Government must recover the interest from the moment that this ruling has been decided and the final decision of the new court in that case is determined by so in the end the court will say that it's not stated so it's compatible which will be ruled as I understand we know that this ruling has not been nullified for the period of our lawfulness then for this period the Dutch Government must still recover the interest although in that case it's also up to it's also up to the commission to decide the different possibilities because because oh yes because now I'm in the commission decides to recover your interest but you are speaking about the situation in which it's compatible in the end but a lot yes but actually I see some points of incoherence with the previous FNCE case first of all concerning the fact that the court says in the case that there is no obligation for the national judge this is the only thing that the court says there is no obligation for national judges it means that there are also cases in which national judges should put autonomously inside that the recovery should be ordered however the court has not given any indication any parameter which the national courts should rather to evaluate whether the recovery should be ordered or not which may be a problem if we think in terms of coordination between member states and protection of taxpayer within the amount because if there are no indications or not yet indications from the court it means that the national judge will apply parameters which are related to be law basically national national parameters which means that in each country there could be different parameters on the basis of which judges decide when order recovery or not after a positive decision of the commission there is a very important issue on the basis of what parameters should the national court decide even when the measure is compatible that there should be recovery another problem that I see is that in the FNCE the court expressly says that in any case the measure is set subsequently to the breach of article 18 power 3 so a national there is an invalid measure but the scheme the court can avoid recovery I think this is a very important in co-inference because the invalidity of the measure does not apply to national law but on the breach of euro so there is certainly an invalidity but the scheme there is no recovery so this is just to say that there are many issues that the relationship between national courts and the commission is very delicate very interesting very problematic and this is something that national courts should be aware of taking into consideration again the very important tool consisting in preliminary ruling that's always an important tool for national court but I think we can also emphasize that although the EU concept of legitimate expectation is rather strict under EU law there is also a very significant role that the court has recognized in national courts and I think yes this is a very important merit of EU law and the court of justice so this is my presentation I don't know if you have other questions or doubts or comments on this issue