1.

The European Commission has issued a notice on the enforcement of state aid law by the national courts of the EC Member States (2). This non-binding act contains principles and rules which the European Commission follows in the field of state aid. It also explains the ways in which cooperation between the European Commission and the national courts of the EC Member States is envisaged to take place.

2.

The EFTA Surveillance Authority (‘渢he Authority‘� considers the above mentioned notice to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA state aid rules throughout the European Economic Area, the Authority adopts the present Chapter, always taking account of the independence of national courts of the EFTA States.

3.

The Authority is committed to take a strict approach towards unlawful and incompatible state aid. In spite of the fact that genuine private enforcement before national courts has only played a relatively limited role in state aid to date, the Authority considers that private enforcement actions can offer considerable benefits for state aid policy. Proceedings before national courts give third parties the opportunity to address and resolve many state aid related concerns directly at national level. In addition, national courts can offer claimants very effective remedies in the event of a breach of the state aid rules. This can in turn contribute to stronger overall state aid discipline.

4.

The main purpose of the present Chapter is to inform national courts and third parties about the remedies available in the event of a breach of the state aid rules and to give them guidance on the practical application of these rules. In addition, the Authority seeks to develop its cooperation with national courts by introducing more practical tools for supporting national judges in their daily work.

5.

This Chapter replaces the Chapter of the EFTA Surveillance Authority‘檚 State Aid Guidelines on co-operation between national courts and the EFTA Surveillance Authority in the state aid field (3) and is without prejudice to any interpretation of the EEA Agreement and regulatory provisions by the EFTA Court.

6.

The first question which national courts and potential claimants face is whether the measure concerned actually constitutes state aid within the meaning of Article 61 of the EEA Agreement.

7.

Article 61(1) of the EEA Agreement covers ‘渁ny aid granted by EC Member States, EFTA States or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Contracting Parties‘�

8.

The notion of state aid is not limited to subsidies (4). It also comprises, inter alia, tax concessions and investments from public funds made in circumstances in which a private investor would have withheld his support (5). Whether the aid is granted directly by the State or by public or private bodies established or appointed by it to administer the aid is immaterial in this respect (6). But, for public support to be classified as state aid, the aid needs to favour certain undertakings or the production of certain goods (‘渟electivity‘�, as opposed to general measures to which Article 61(1) of the EEA Agreement does not apply (7). In addition, the aid must distort or threaten to distort competition and must have an effect on trade between Contracting Parties to the EEA Agreement (8).

9.

The case law of the EFTA Court and the courts of the European Community (9) and the decisions taken by the Authority and the European Commission have frequently addressed the question of whether certain measures qualify as state aid. In addition, the Authority has issued detailed guidance on a series of complex issues, such as the application of the private investor principle (10) and of the private creditor test (11), the circumstances under which state guarantees must be regarded as state aid (12), the treatment of public land sales (13), export credit insurance (14), direct business taxation (15), risk capital investments (16), and state aid for research, development and innovation (17). Also, the Commission Regulation on aid below the de minimis thresholds (18) has been incorporated into the EEA Agreement. Case law of the EFTA Court and of the European Court of Justice, guidance from the Authority and decision making practice can provide valuable assistance to national courts and potential claimants concerning the notion of state aid.

10.

Where doubts exist as to the qualification of state aid, national courts may ask the Authority for an opinion under section 2 of this Chapter. This is without prejudice to the possibility for a national court to refer the matter to the EFTA Court for an advisory opinion under Article 34 of the Surveillance and Court Agreement.

11.

According to the last sentence of Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement, EFTA States shall not implement state aid measures without the prior approval of the Authority (standstill obligation):

‘淭he EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the functioning of the EEA Agreement having regard to Article 61 of the EEA Agreement, it shall without delay initiate the procedure provided for in paragraph 2. The State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision‘�a href="#ntr19-L_2011115EN.01001501-E0019" id="ntc19-L_2011115EN.01001501-E0019" shape="rect"> (19)