Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/3.4.3
3.4.3 The legal status of the Communications
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS592944:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
T-104/13, para. 184.
“Although the Commission must observe the principle of the protection of legitimate expectations when it applies its self-imposed guidelines, that principle cannot bind the Courts of the European Union in the same way, in so far as they do not propose to apply a specific method of setting the amount of fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations.” T-82/13, para. 168.
As noted by Doleys (2012, p. 553), the use of soft law provides a “politically-palatable way to address government behaviour”. See also: Sutton, Lannoo & Napoli 2010, p. 31.
Soltész & Von Köckritz 2010, p. 289.
Opinion in case C-526/14 (Kotnik), para. 32.
Opinion in case C-526/14, para. 37.
The Communications can be characterised as “soft law”: they are not binding on Member States. They are, however, binding on the Commission. In that regard, the CJEU has held the following:
“Where the Commission adopts guidelines intended to specify, consistently with the Treaty, criteria which it intends to apply in the exercise of its discretion, there is a self-imposed limitation of that discretion in that it is obliged to comply with the guiding rules which it imposed on itself. It may not depart from those guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified”.1
In another case, the CJEU clarified that the Communications are not binding on the Courts of the European Union.2 This once more underlines that the Communications are “soft law”.
It is worth stressing that despite their soft law character, the Communications are nonetheless authoritative. Indeed, although the Communications are not binding on Member States, they do influence the behaviour of Member States.3 It has even been remarked that the Communications de facto have the same binding power as formal laws or regulations.4
The legal status of the 2013 Banking Communication was one of the issues in case C-526/14. The “Ustavno sodigoe” (i.e. the Constitutional Court of Slovenia) asked for a preliminary ruling. Advocate-General Wahl held that the referring court asked in essence whether the Banking Communication should be considered as de facto binding on the Member States.5 The Advocate-General recalled that in the field of State aid control, the Commission has no general legislative power: “This means that the Commission is not empowered to lay down general and abstract binding rules governing, for example, the situations in which aid may be considered compatible because it is aimed at remedying a serious disturbance in the economy of a Member State under Article 107(3)(b) TFEU. Any such body of binding rules would be null and void”.6