In his Opinion of 27 June 2013 in case C-284/12 Deutsche Lufthansa, Advocate General Mengozzi stressed that (provisional) Decisions of the European Commission in State Aid cases are open to (indirect) challenges via a reference for a preliminary ruling on their validity under Article 267 of the Treaty on the Functioning of the European Union.
In the case at hand, the complainant before the Commission seeked interim measures against the beneficiary of a measure that the Commission qualified as State aid in its decision to open a formal investigation. The domestic court competent in the matter remained unconvinced by the Commission's preliminary assessment and seeked ways not to adopt interim measures on the basis of such an assessment. It referred the following question to the CJEU:
Does the uncontested decision of the Commission to initiate the formal investigation procedure under Article 108 paragraph 3, second sentence, result in the national court seised of a procedure which aims to recover payments already made and the prohibition of future payments being bound by the legal assessment expressed by the Commission in that decision on the state aid character of the measure in question?
In paragraph 42 of his Opinion, AG Mengozzi indicates that:
under the combined effect of Article 108 paragraph 3, last sentence, and the qualification as a new aid of the controverted measure [in the provisional decision of the Commission], the opening of the formal investigation procedure generates the obligation of the Member State concerned to suspend its execution from the date of adoption of the decision to open the investigation and until a final decision is reached, regardless of the objective nature of the controverted measure [...]. National courts will therefore be obliged to take all necessary measures to ensure compliance with this requirement and to eliminate the consequences of any breach thereof, regardless of any previous assessment of the measure under Article 107, paragraph 1. In case national courts harbour doubts about whether the requirements to qualify the measure as aid are met in the given case, which justify the initiation of the formal investigation procedure, national courts may refer a question of validity under Article 267 TFEU, first paragraph, letter b) (Opinion in C-284/12 at para 42, own translation from Spanish).
This comes to stress the (procedural) difficulties derived from the joint competence of domestic courts and the Commission to interpret and apply the notion of aid under Article 107(1) TFEU--as stressed in paragraph 10 of the Commission Notice on the enforcement of State Aid law by national courts, which also metions the possibility for a preliminary reference in paragraph 90, but (impliedly) in a context where no concurrent Commission investigation is in place--and can create significant complications by way of parallel procedures (before the Commission, the national courts and the CJEU) in one and the same case. Such duplication of procedures can only result in a waste of resources and, most likely, in legal uncertainty and potentially contradictory outcomes.
In my view, leaving the door open for a reference for a preliminary ruling (of validity) against a provisional assessment of the European Commission is excessively deferential towards domestic courts and can have significant undesirable effects. This is not satisfactory and would justify the adoption of a more streamlined procedural system whereby national courts would have to suspend their powers of interpretation of the concept of aid and limit their role to the adoption of effective interim measures when the Commission is still completing its investigation on a given measure.
In my view, this could be easily achieved by simply applying Article 4(3) of the Treaty on European Union, since the need for sincere cooperation in this type of matters seems out of the question. It will be interesting to see how far the CJEU is willing to go in the balance between the sphere of jurisdiction/competence of domestic courts and ensuring a mangeable procedural system in State aid law.