Aiuti di Stato e giudici nazionali nella bozza di nuova Comunicazione della Commissione: alcune riflessioni a prima lettura

The European Commission, at the end of January 2021, adopted a draft of a new Notice on the enforcement of State aid law by national courts, which will replace the Notice of 2009, still in force. The draft – which takes into account the evolution of the case-law of the Court of Justice, has the aim to encourage – like the previous notice – the actions brought by private parties before national courts and to specify better the role of the latter in the context of private enforcement of State aid rules. The paper deals with the new role of national courts with a critical approach, trying to highlight the main changes that has been made and the aspects that seem to be less clear or more problematic. The new Communications devotes a great part to the general principles guiding the enforcement of State aid rules at national level, and it gives a particular attention to the principle of procedural autonomy (as limited by “equivalence” and “effectiveness”). It also emphasizes the exclusivity of the Commission competence in the assessment of the compatibility of a State aid, introducing new detailed provisions as regards the relationship between the Commission and the national courts. Furthermore the new draft points out the consequences (i.e. the opening of the infringement procedure) arising from the failure by national judges to comply with EU law of State aid and the Commission decisions. At a first reading, the draft seems to confirm the tendency to enhance the effectivity of the enforcement rather then to strengthen the judicial protection of private parties, pointing out the complementarity of the private enforcement with the public enforcement.