Official Journal of the European Union

C series

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C/2025/4038

28.7.2025

(Case C-329/25, SAS)

(C/2025/4038)

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: SAS AB

Defendant: Kingdom of Denmark

Questions referred

Is the obligation to pay illegality interest, as established, inter alia, in the judgment of 12 February 2008 in CELF, Case C-199/06, (1) applicable in a situation such as that in the main proceedings, having regard to the fact that:

the obligation relating to prior notification laid down in Article 108(3) TFEU was complied with by the Member State granting the aid, and the payment of the compatible aid took place after the Commission’s approval, in so far as the unlawfulness of the aid resulted from the fact that that approval was subsequently annulled by the General Court and the aid was then re-approved by the Commission, that new approval having subsequently having been challenged before the General Court, before which the case is currently pending;

the defect in the Commission’s prior decision which justified the General Court’s annulment of that decision (in this case, the absence of a step-up mechanism) did not have effect during the period of unlawfulness because the entry into force of the step-up mechanism was linked temporally to the payment of the aid and not to the adoption of the Commission’s new approval; and

the objective of the aid to remedy a disturbance in the economy of a Member State within the meaning of Article 107(3)(b) TFEU could be frustrated if the aid could be granted only after the judicial review of the Commission’s decision has been finalised?

If, in principle, the obligation to pay interest as described in Question 1 exists, can a situation such as that in the present case constitute an exceptional circumstance capable of justifying a limitation of the obligation on the beneficiary of aid to pay illegality interest?

Does Article 108(3) TFEU, in conjunction with the principle of effectiveness, preclude an aid granting Member State from applying the law of another Member State, including in a situation such as that in the present case, where it is to order the recovery of unlawful aid, including the collection of illegality interest? What is the effect of the Member States’ obligations under Article 108(3) TFEU, in conjunction with the principle of effectiveness, on the question as to which Member State’s law must be applied when recovering aid and calculating illegality interest?

Must Article 108(3) TFEU, in conjunction with the principle of effectiveness, be interpreted as precluding a Member State from fixing the interest rate in respect of a claim for illegality interest in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (2) of 21 April 2004, as amended?

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(1) EU:C:2008:79.

(2) Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

ELI: http://data.europa.eu/eli/C/2025/4038/oj

ISSN 1977-091X (electronic edition)

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