CJ, 21-05-2026, nr. C-545/24

This request for a preliminary ruling concerns the interpretation of Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and of Article 5 of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira — (ZFM) — Regime III (OJ 2022 L 217, p. 49; ‘the Commission Decision of 4 December 2020’).

The request has been made in proceedings between Utiledulci- Comércio Internacional e Serviços, Sociedade Unipessoal, Lda. — Zona Franca da Madeira (‘Utiledulci’) and the Autoridade Tributária e Assuntos Fiscais da Região Autónoma da Madeira (Tax and Fiscal Affairs Authority of the Autonomous Region of Madeira, Portugal) (‘the tax authority’) concerning a tax enforcement procedure against Utiledulci for the recovery of the State aid which had been granted to that company in the form of a reduction in the rate of income tax.

On 4 December 2020, the Commission adopted Decision 2022/1414, by which it declared the aid scheme ‘Zona Franca da Madeira (ZFM) — Regime III’ (‘Regime III’) to be incompatible with the internal market, in so far as it had been implemented by the Portuguese Republic in breach of the Commission's approval decisions of 27 June 2007 and 2 July 2013 in Case N 421/2006 and in Case SA.34160 (2011/N), respectively, and therefore in breach of Article 108(3)TFEU.

Article 5 of the Commission Decision of 4 December 2020 stipulated that the recovery of aid incompatible with the internal market granted under Regime III was to be ‘immediate and effective’ and that the Portuguese Republic was required to implement that decision ‘within eight months following the date of notification of this Decision’. That time limit expired on 5 August 2021.

On the basis of that decision, the tax authority initiated a tax enforcement procedure in respect of Utiledulci with a view to recovering the State aid which had been granted to that company under Regime III in the form of a reduction in the rate of income tax applicable to the recipient companies.

The Portuguese legal system does not lay down any specific rules governing the recovery of State aid. Where the recovery of State aid is at issue, there is no rule that precludes the application of procedural safeguards laid down by Portuguese tax law, in particular those relating to the suspension of the tax enforcement procedure. In those circumstances, the administrative procedure applicable to the recovery of such aid is a tax enforcement procedure.

The provisions of Portuguese law governing that tax enforcement procedure establish a right to request the suspension of that procedure in the event of a dispute over the tax debt or opposition to enforcement measures and in the event of payment in instalments, provided that a suitable guarantee or any other appropriate means of guaranteeing the recovery of the tax liability is provided or, even in the absence of such a guarantee, if the taxpayer can prove that it is unable to provide it.

Utiledulci applied for such a suspension. The tax authority rejected that application, relying on the principle of the primacy of EU law. Utiledulci challenged that rejection decision before the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Portugal), which is the referring court.

That court is uncertain as to the interpretation to be given to Article 16(3) of Regulation 2015/1589 and Article 5 of the Commission Decision of 4 December 2020. It considers, in essence, that the question to be decided is whether the immediate and effective enforcement of that decision requires that the provisions of Portuguese tax law relating to the suspension of the tax enforcement procedure be disregarded.

In those circumstances, the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

As a preliminary point, it should be recalled that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court of Justice may have to reformulate the questions referred to it (see judgments of 17 July 1997, Krüger, C-334/95, EU:C:1997:378, paragraphs 22 and 23; of 28 November 2000, Roquette Frères, C-88/99, EU:C:2000:652, paragraph 18; and of 3 June 2025, Kinsa, C-460/23, EU:C:2025:392, paragraph 34).

In the present case, it should be noted that the provisions of Portuguese law governing the tax enforcement procedure, applicable when the Portuguese Republic recovers unlawful State aid that is incompatible with the internal market, establish the right to request the suspension of that procedure, inter alia, in the event of a challenge to the tax debt or opposition to enforcement measures and in the event of payment in instalments, subject to the provision of a guarantee consisting of a bank guarantee, a surety, suretyship insurance, an attachment, a voluntary charge or any other appropriate means of guaranteeing the recovery of the tax liability. The taxpayer may, on request, be exempted from the provision of such a guarantee where it causes irreparable harm to the him or her or in the event of a manifest lack of financial means.

The view must therefore be taken that, by its question, the referring court asks, in essence, whether Article 16(3) of Regulation 2015/1589 must be interpreted as meaning that it requires the competent national authorities and the national courts to disregard national provisions allowing the suspension of a tax enforcement procedure intended to recover unlawful State aid that is incompatible with the internal market where the beneficiary of the aid provides a guarantee, such as a bank guarantee, a surety, suretyship insurance, an attachment, a voluntary charge or any other appropriate means of guaranteeing the recovery of the claim of the party seeking enforcement, or even following a request by that beneficiary seeking exemption from the obligation to provide such a guarantee.

In that respect, it should be recalled that, under Article 16(3) of Regulation 2015/1589, without prejudice to any order of the Court pursuant to Article 278 TFEU, recovery of aid is to be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission's recovery decision. To that effect, in the event of a procedure before the national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to EU law.

Recital 25 of that regulation states that, in cases of unlawful aid which is not compatible with the internal market, effective competition should be restored and for that purpose it is necessary that the aid concerned be recovered without delay. The application of national procedures should not therefore impede the restoration of effective competition by preventing the immediate and effective execution of the Commission's recovery decision. To achieve that result, Member States should take all necessary measures ensuring the effectiveness of that decision.

Thus, although Article 16(3) of Regulation 2015/1589 reflects the requirements of the principle of effectiveness, it is also apparent that the law of the Member State concerned must, for the purposes of the recovery of unlawful aid, be applied in accordance with the principle of the procedural autonomy of that Member State, in the absence of applicable provisions of EU law, while at the same time ensuring that fundamental rights are observed, in particular the right to a fair hearing, including the rights of defence (judgment of 11 September 2014, Commission v Germany, C-527/12, EU:C:2014:2193, paragraph 39).

The freedom of the Member States with regard to the choice of method of recovery of such aid is, however, limited in so far as those rules and procedures cannot have the effect of making the recovery required by EU law practically impossible. The application of national procedures is thus subject to the condition that those procedures allow the immediate and effective execution of the Commission's recovery decision (see, to that effect, judgments of 5 October 2006, Commission v France, C-232/05, EU:C:2006:651, paragraph 49, and of 11 September 2014, Commission v Germany, C-527/12, EU:C:2014:2193, paragraph 41 and the case-law cited).

A Member State which, by virtue of a Commission decision, is obliged to recover the unlawful aid, cannot fulfil that obligation unless the measures which it adopts are appropriate for the purpose of restoring the normal conditions of competition which were distorted by the grant of the unlawful aid (judgments of 12 December 2002, Commission v Germany, C-209/00, EU:C:2002:747, paragraph 35, and of 11 September 2014, Commission v Germany, C-527/12, EU:C:2014:2193, paragraph 42).

The objective of the recovery of unlawful State aid is to restore the situation which existed on the internal market prior to the payment of that aid. That objective is attained once that aid, together with default interest where appropriate, has been repaid by the beneficiary of that aid or, in other words, by the undertakings which actually enjoyed the benefit of it. By repaying the aid, the beneficiary consequently forfeits the advantage it had enjoyed on the market in relation to its competitors, and the situation prior to the payment of that aid is restored (see, to that effect, judgments of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C-164/15 P and C-165/15 P, EU:C:2016:990, paragraphs 89 and 90; of 19 October 2023, Ministar na zemedelieto, hranite i gorite, C-325/22, EU:C:2023:793, paragraph 47; and of 29 July 2024, Koiviston Auto Helsinki v Commission, C-697/22 P, EU:C:2024:641, paragraph 79 and the case-law cited).

In that regard, it must also be stated, as the Advocate General observed, in essence, in points 16 and 17 of his Opinion, that the obligation on the Member State to which a Commission recovery decision is addressed, under Article 16(1) of Regulation 2015/1589, to take all necessary measures to recover the aid concerned from the beneficiary constitutes an obligation to achieve a specific result (see, to that effect, judgment of 13 November 2025, Commission v Bulgaria (Forest land swaps II), C-632/23, EU:C:2025:890, paragraph 64). Furthermore, that obligation must be fulfilled within the time limits set by the Commission (see, to that effect, judgments of 22 December 2010, Commission v Italy, C-304/09, EU:C:2010:812, paragraph 32, and of 13 November 2025, Commission v Bulgaria (Forest land swaps II), C-632/23, EU:C:2025:890, point 33 and the case-law cited).

In conclusion, as the Advocate General stated in point 21 of his Opinion, the procedural autonomy granted to Member States in relation to the recovery of unlawful State aid is limited by the need to ensure the effectiveness of the action taken by the administrative authorities responsible for carrying it out. It therefore falls to both the national courts and, subject to review by those courts, those authorities to ensure implementation in accordance with the objective pursued by the Commission decision ordering the recovery of that aid, which is to prevent any distortion of the functioning of the market resulting from the grant of State aid harmful to competition. In that regard, it should be noted that it is settled case-law that a Member State may not rely on provisions of its national legal order, even constitutional provisions, to justify failure to fulfil obligations arising from EU law (see, to that effect, judgment of 6 May 2015, Commission v Germany, C-674/13, EU:C:2015:302, paragraph 59 and the case-law cited).

In the present case, as stated in paragraphs 12 and 17 above, the provisions of Portuguese law applicable when the Portuguese Republic takes steps to recover unlawful State aid that is incompatible with the internal market establish the right to request the suspension of that procedure, inter alia in the event of a dispute over the tax debt or opposition to enforcement measures and in the event of payment in instalments, subject to the provision of a guarantee consisting of a bank guarantee, a security, suretyship insurance, an attachment, a voluntary charge or any other appropriate means of guaranteeing the recovery of the tax liability, or even, in the absence of such a guarantee, where the taxpayer demonstrates that that would cause it irreparable harm or in the event of a manifest lack of financial means.

It is therefore necessary to examine whether the application of those provisions, while taking into account the general context of the national law of which they form part, is irreconcilable with the requirement for immediate and effective recovery of the aid concerned, as provided for in Article 16(3) of Regulation 2015/1589 and as interpreted in the light of the guidance set out in the case-law referred to in paragraphs 21 to 25 above.

In that regard, it must be borne in mind, in the first place, that national legislation providing for the automatic suspensory effect of actions brought against a decision seeking to recover unlawful aid cannot be regarded as allowing the immediate and effective enforcement of a Commission decision seeking the recovery of that aid. On the contrary, the granting of such suspensive effect may considerably delay the recovery of that aid and thus prolong the undue competitive advantage resulting from it (see, to that effect, judgment of 5 October 2006, Commission v France, C-232/05, EU:C:2006:651, paragraphs 46, 51 and 52). Such national legislation, which provides for the automatic suspensory effect of actions brought against decisions seeking to recover unlawful aid, must therefore be disregarded (judgment of 5 October 2006, Commission v France, C-232/05, EU:C:2006:651, paragraph 53).

In the present case, the national tax enforcement procedure is also characterised, as the Advocate General observed in point 24 of his Opinion, by factors of a systematic and automatic nature, in so far as the Portuguese tax authorities have no discretion as regards, at the very least, the suspension of enforcement, where the condition relating to the provision of a guarantee is satisfied.

Accordingly, it must be held that the automatic nature of the suspension provided for by a national enforcement procedure such as the one at issue in the main proceedings is liable to delay significantly the recovery of unlawful aid and, in so doing, to prolong the undue competitive advantage which that aid conferred on its beneficiary, thereby undermining the requirement for immediate and effective recovery of that aid, as set out in Article 16(3) of Regulation 2015/1589.

As the Advocate General observed in point 26 of his Opinion, instruments such as a bank guarantee, a surety, suretyship insurance, an attachment or a voluntary charge do not, a priori, have the effect of extracting the aid from the beneficiary's assets, thus depriving it of the advantage pertaining to that aid. Neither the accounting consequences nor the costs associated with the provision of a guarantee, as regards their effect on the beneficiary's economic situation, may be treated as repayment of the aid received. The explicit objective of those instruments is to provide security to protect the creditor's claim for the period during which the enforcement procedure is suspended, which differs from the aim pursued by the recovery of unlawful aid.

The situation would be different only if the distortion of competition were fully eliminated, for example by an attachment to or a payment into a blocked account for the amount of the unlawful aid and the interest thereon, which it will be for the referring court to ascertain. In such cases, the objective pursued by the Commission's decision seeking the recovery of that unlawful aid, namely the restoration of normal conditions of competition distorted by the grant of that aid, would be achieved.

In the second place, as regards the possibility of exempting the party defending the enforcement procedure from the obligation to provide a guarantee, it must be stated that considerations relating to the economic loss resulting from the repayment of the aid concerned cannot justify a delay in the recovery procedure. Even where unlawfully granted State aid is to be recovered from beneficiary undertakings in difficulty or in a state of insolvency, such difficulties do not affect the obligation to recover that aid (see, to that effect, judgments of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 71, and of 17 January 2018, Commission v Greece, C-363/16, EU:C:2018:12, paragraph 36). It follows that the Member State is therefore required, depending on the case, to bring about the winding-up of that company, to have its claim registered as one of that company's liabilities or to take any other measure enabling that aid to be recovered (see, to that effect, judgment of 6 December 2007, Commission v Italy, C-280/05, EU:C:2007:753, paragraph 28).

In the third place, as regards the possibility of payment in instalments of the sums due, it must be pointed out that such payment arrangements, where they are authorised beyond the period for recovery set by the Commission, cannot be reconciled with the obligation to enforce recovery without delay, which is intended, inter alia, to ensure that the Commission's recovery decision, in the present case the Commission decision of 4 December 2020, is fully effective and to achieve an outcome consistent with the objective pursued by that decision, namely to ensure that funds corresponding to the aid that has already been reimbursed are not once again made available to the beneficiary of the aid, even provisionally (see, to that effect, judgment of 20 May 2010, Scott and Kimberly Clark, C-210/09, EU:C:2010:294, paragraph 29).

Lastly, it should be recalled that it follows from the case-law of the Court that the elimination of unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful. Consequently, the recovery of State aid unlawfully granted for the purpose of re-establishing the previously existing situation cannot in principle be regarded as disproportionate to the objectives of the Treaty with regard to State aid. The measure to recover the unlawful aid is in breach of the principle of proportionality only if the amount which the beneficiary is required to repay exceeds the discounted value of the aid received (see, to that effect, judgments of 21 March 1990, Belgium v Commission, C-142/87, EU:C:1990:125, paragraph 66, and of 29 July 2024, Koiviston Auto Helsinki v Commission, C-697/22 P, EU:C:2024:641, paragraphs 79 and 80).

It follows that national legislation, such as that at issue in the main proceedings, providing for the automatic suspensory effect of payment in instalments or of actions brought against a decision seeking to recover unlawful aid appears, subject to the checks which it is for the national court hearing the case to carry out, to be incompatible with the objectives of eliminating unlawful aid declared incompatible with the internal market and with the requirement to ensure the immediate and effective enforcement of the decisions ordering its recovery. Therefore, as stated in paragraph 29 above, such national provisions must be disregarded.

In the light of all of the foregoing, the answer to the question referred is that Article 16(3) of Regulation 2015/1589 must be interpreted as meaning that it requires the competent national authorities and the national courts to disregard national provisions allowing the suspension of a tax enforcement procedure intended to recover unlawful State aid that is incompatible with the internal market where the beneficiary of the aid provides a guarantee, such as a bank guarantee, a surety, suretyship insurance, an attachment, a voluntary charge or any other appropriate means of guaranteeing the recovery of the claim of the party seeking enforcement, or even following a request by that beneficiary seeking exemption from the obligation to provide such a guarantee, unless the provision of the guarantee deprives that beneficiary of the competitive advantage linked to that aid.

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU]

must be interpreted as meaning that it requires the competent national authorities and the national courts to disregard national provisions allowing the suspension of a tax enforcement procedure intended to recover unlawful State aid that is incompatible with the internal market where the beneficiary of the aid provides a guarantee, such as a bank guarantee, a surety, suretyship insurance, an attachment, a voluntary charge or any other appropriate means of guaranteeing the recovery of the claim of the party seeking enforcement, or even following a request by that beneficiary seeking exemption from the obligation to provide such a guarantee, unless the provision of the guarantee deprives that beneficiary of the competitive advantage linked to that aid.

[Signatures]