CSAU Takes A Hard Line On State Aid

• Published date: 06 July 2023
• Subject Matter: Antitrust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Trials & Appeals & Compensation
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Dimitris Vallindas

In summary

This article provides an overview of the mechanisms and tendencies of the granting of state aid in Greece, and its national control. The notion of aid under article 107(1) of the Treaty on the Functioning of the European Union implies the granting of an advantage to the beneficiary of the aid. To avoid any distortion of competition in the internal market, EU law determines the conditions of granting state aid to European undertakings. State aid regulations strictly limit the granting of these state contributions to a few scenarios.

---

Discussion points

• National state aid control
• National substantive and procedural rules
• Role of national courts

---

Referenced in this article

• Zuckerfabrik Süderdithmarschen ao
• Atlanta
• Alcan
• Italy v Commission
• Commission v Greece
• Andrea Francovich and Danila Bonifaci and others v Italian Republic
• Brasserie du P'cheur SA
• SFEI v La Poste ao
• CELF

National state aid control

Greek authorities in charge of state aid

Articles 22-35 of Law 5000/2022 (replacing previous provisions of Law 4152/2013) establishes the Central State Aid Unit (CSAU), a directorate of the Ministry of Finance, which is the main Greek authority responsible for state aid matters. Its main competences and powers are:

• notification of aid measures by Greece to the European Commission;
• provision of an opinion on all drafts entailing a transfer of state resources to operators that have an economic activity;
• role as the national sole contact point for state aid issues with the European Commission and with other European and international bodies;
• monitoring of compliance of national measures with EU state aid rules and the processing of cases under examination by the European Commission, in particular the recovery of incompatible aid;
• assistance with the preparation of any responses to questions raised by the European Commission in relation to state aid matters;
• participation in the advisory bodies of the Directorate General for Competition of the European Commission, contributing to the adoption of new rules;
• responsible for the Central Information System of State Aid (CISSA);
• provision of training, know-how and any supporting material to decentralised state aid units (DSAUs); and
• annual reporting.

By virtue of its constituent law, the CSAU is not competent to liaise with private undertakings (whether a beneficiary or a third party); therefore, it has no investigatory or enforcement powers. However, in principle, a measure that may possibly contain state aid cannot be implemented without the prior consent of the CSAU.

The CSAU is assisted in its tasks by DSAUs. DSAUs operate as offices within ministries and other bodies dealing with state aid issues. DSAUs are in charge of identifying state aid measures in legislation and other administrative decisions and of sending their conclusions to the CSAU, so that the latter can provide its opinion. If the CSAU considers that the measures entail state aid, it also opines on their compatibility with the internal market.

Law 4152/2013, replaced by article 27 of Law 5000/2022, provided for the establishment of the CISSA, which contains every Greek state aid measure.

The CISSA is monitored by the CSAU, and each DSAU system is connected to it. The CSAU also manages at the national level the transparency award module (TAM) web page, on which brief information regarding awarded state aid is uploaded. The page contains information such as the beneficiary's name, the amount and the type of aid.

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

Ex ante control of potential aid measures

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

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

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

In principle, a measure that may contain state aid cannot be implemented without the prior consent of a DSAU or the CSAU; however, as in all member states, unlawful state aid is granted from time to time in Greece, despite the existence of this safeguard.

National representation before EU courts

Greece's representation before the EU courts is handled either by the Legal Council of the State, supervised by the Minister of Finance, or the Special Legal Department (the EU law section of the Ministry of Foreign Affairs). The CSAU assists them in the representation of Greece before the EU courts.

National substantive and procedural rules

There are no specific Greek laws relating to state aid, apart from administrative circulars on state aid and procedural rules on the recovery of aid. The CSAU has issued a cursory circular on the existence of aid, one on the publication of aid schemes and measures on the Transparency Award Module, and one on de minimis and General Block Exemption Regulation (GBER) aid, as well as a checklist on the existence of aid.

EU law is directly applicable, and Greek aid schemes refer explicitly to EU rules. There are no specific provisions regarding the application and enforcement of EU state aid rules, with the exception of procedural rules for the recovery of aid, which are described in articles 30-31 of Law 5000/2022.

Role of national courts

Jurisdiction to apply state aid rules by national courts

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

There is no specific national rule describing in detail who has...