Provisional text

delivered on 13 March 2025 (1)

Case C‑653/23

SIA „TOODE”

Valsts ieņēmumu dienests

(Request for a preliminary ruling from the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia))

( Reference for a preliminary ruling – State aid – Article 107(1) TFEU – National aid scheme approved by the European Commission to support the economy in the context of the COVID-19 pandemic – Refusal by the competent authority to grant aid to an undertaking that does not fulfil the conditions laid down by that scheme – Action requesting that a national court order the granting of such aid – Expiry during the legal proceedings of the time limit fixed for the granting of such aid – Determination of the date on which the aid is deemed to have been granted – Regulation (EU) 2015/1589 – Article 1 – Existing aid or new aid )

1.The Latvian tax authorities refused a request from a Latvian undertaking for State aid intended to support the economy in the context of the COVID-19 pandemic, on the grounds that it did not meet the conditions laid down by national law for eligibility. That undertaking brought an action before a national court to obtain a declaration that it did indeed fulfil those conditions and to order the tax authorities to adopt a beneficial administrative act in its case. However, the period of validity of the aid scheme approved by the European Commission expired during the proceedings before the national court. Can this undertaking be granted the aid in question if the initial refusal by the tax authorities to grant the aid is overturned by a court decision delivered after the time limit for granting the aid has expired? This is, in essence, the question being asked by the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia).

2.The present case will require the Court to rule, first, on the determination of the date on which State aid is deemed to have been granted under Article 107(1) TFEU and, second, on whether aid should be classified as existing or new within the meaning of Article 1 of Regulation (EU) 2015/1589, (2) in the specific context where a national court recognises eligibility for aid after the time limit fixed for granting that aid has expired, as laid down in national legislation and approved by the Commission, and orders the competent authority to grant the aid requested.

II. Legal context

‘For the purposes of this Regulation, the following definitions shall apply:

…

(b) “existing aid” means:

…

(ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;

…

(c) “new aid” means all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;

…’

4. The communication from the Commission entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (OJ 2020 C 91 I, p. 1, ‘the communication on the Temporary Framework’), of 20 March 2020, has been amended a number of times. This communication includes a section 3.1., entitled ‘Limited amounts of aid’, points 21 and 22 of which – in their version resulting from its sixth amendment of 24 November 2021 (OJ 2021 C 473, p. 1) – were worded as follows:

‘21. Beyond the existing possibilities based on Article 107(3)(c) TFEU, temporary limited amounts of aid to undertakings that find themselves facing a sudden shortage or even unavailability of liquidity can be an appropriate, necessary and targeted solution during the current circumstances.

22. The Commission will consider such State aid compatible with the internal market on the basis of Article 107(3)(b) TFEU, provided that all the following conditions are met …:

…

(d) the aid is granted no later than 31 December 2020;

…’

B. Latvian law

‘When assessing the lawfulness of an administrative act, the courts shall take into account in their decision only the reasoning contained in the administrative act. This limitation shall not apply in cases where the application seeks the granting of a beneficial administrative act.’

6. Article 254(1) of that law provides:

‘If a court considers the application for the adoption of an administrative act to be well founded, it shall order the public authority to adopt the corresponding administrative act.’

7. Decree No 676 of the Council of Ministers of 10 November 2020 (4) established the ‘Noteikumi par atbalstu Covid-19 krīzes skartajiem uzņēmumiem apgrozāmo līdzekļu plūsmas nodrošināšanai’ (rules on aid to undertakings affected by the COVID-19 crisis to ensure the flow of working capital; ‘the Latvian aid rules’). This aid scheme, which came into force on 17 November 2020, was established in accordance with the requirements set out in section 3.1 of the communication on the Temporary Framework and was approved by the Commission by decision SA.59592 (2020/N) of 16 December 2022, for a period up to 30 November 2021, which was subsequently extended to 30 June 2022. (5)

8. Paragraph 23 of the Latvian aid rules, in the version in force at the time of the facts of the dispute in the main proceedings, stated as follows:

‘The moment of granting the aid is deemed to be the day on which [the National Tax Authority] takes a decision regarding the granting of the aid.’

9. Paragraph 24 of these rules stated:

‘The decision is taken by 30 June 2022, in accordance with [the communication on] the Temporary Framework.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

10. On 25 March and 9 April 2021, SIA TOODE (‘TOODE’), a Latvian undertaking, applied to the Valsts ieņēmumu dienests (National Tax Authority, Latvia; ‘the VID’ or ‘the tax authority’) for aid, for the months of January and February 2021, under the national aid scheme intended to ensure the flow of working capital for undertakings affected by the COVID-19 crisis (‘the national aid scheme’).

11. By decisions of 23 April and 7 June 2021, and then of 9 June and 23 July 2021, the VID refused to grant TOODE the aid requested on the grounds that this undertaking did not meet the conditions laid down by the Latvian aid rules. In that regard, the VID determined that TOODE’s turnover for the months of January and February 2021 had not decreased sufficiently to meet the conditions required by the national legislation and thus be eligible for that aid.

12. TOODE brought an action before the Administratīvā rajona tiesa (District Administrative Court, Latvia) arguing in particular that the VID had no reason to take into account the total value of the transactions indicated in the value added tax (VAT) return for the tax year in question when calculating its turnover. By judgment of 14 April 2022, that court dismissed TOODE’s action on the grounds that the conditions for granting the aid were not met in this case.

14. The referring court notes that the national aid scheme was approved by the Commission and should be considered compatible with the internal market, provided, in particular, that the aid was granted – in accordance with point 22(d) of the communication on the Temporary Framework and paragraph 24 of the Latvian Aid Rules – by 30 June 2022 at the latest. That court also emphasises the point that, in the present case, that time limit expired during the proceedings initiated before it. The court considers that it is required to assess, in the context of the main dispute, whether TOODE is still eligible for the aid requested. For this purpose, it is required to determine the date on which that aid is deemed to have been ‘granted’ pursuant to Article 107(1) TFEU, and whether the aid constitutes existing or new State aid within the meaning of Article 1 of Regulation (EU) 2015/1589.

15. First of all, with regard to the date on which the aid is deemed to have been granted, that court considers that a certain and unconditional right to receive the aid within the meaning of the Court’s case-law (6) can, in principle, only arise following a court decision, that is to say, when the national court finds that the applicant has fulfilled all the conditions laid down by national law to be eligible for the aid in question and that the refusal by the competent authority to grant the aid is unlawful and unfounded. Furthermore, in so far as the legal relationship does not exist, the enforcement of a court decision cannot give rise to the retroactive adoption (ex tunc) of a beneficial administrative act, as the national court can only order the competent authority to adopt an appropriate administrative act granting aid ex nunc.

16. At the request of the Court, that court stated that TOODE did indeed fulfil the conditions laid down by national law to be eligible for the aid at the time it submitted its application, such that the VID’s refusal appears to be unlawful and unfounded. Therefore, that court is wondering if, in the event that it orders the VID to adopt a beneficial administrative act and to grant and pay the amount of the aid requested, it should be considered that the date on which that aid was granted corresponds to the date on which the tax authorities unjustifiably refused to grant it.

17. Next, with regard to the question as to whether the aid is existing or new, the referring court wonders whether the case-law of the Court – according to which aid granted by the competent authority to a person after the expiry of an approved aid scheme should be considered new aid (7)– can be applied to a situation, such as that at issue in the main proceedings, where the tax authorities wrongly refused to grant the aid requested while the aid scheme was still in force and where the authorities were subsequently ordered by a court decision to grant and pay the amount of the aid after that scheme had expired.

18. Finally, the referring court makes reference to the opinion issued by the Commission on 11 September 2023 in response to questions raised by another Latvian court (8). In that opinion, the institution stated that, in accordance with paragraph 23 of the Latvian aid rules, the aid is granted when the tax authority adopts the decision to grant or refuse the aid. In addition, it stated that the granting of aid after the expiry of the time limit fixed for this purpose would constitute a breach of Article 108(3) TFEU and that it would be for the national courts to prevent the payment of the aid to its beneficiary. Still according to that opinion, the national courts could not, after that date, award compensation instead of that aid for the damage suffered by that person as a result of the aid not having been granted.

19. In those circumstances, the Administratīvā apgabaltiesa (Regional Administrative Court) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 107(1) [TFEU] to be interpreted as meaning that State aid is to be considered to have been “granted” at the point in time when the competent public authority unduly refused to rule that an individual had a right to receive State aid, if such is established by a judicial decision made after the expiry of the time limit prescribed for granting the aid?

(2) Is Article 1(b)(ii) of [Regulation 2015/1589] to be interpreted as meaning that aid which, in the absence of a decision by the competent public authority within the time limit prescribed for granting the aid, is granted to an individual after the expiry of the period laid down by the aid scheme for granting the aid, pursuant to a judicial decision finding that, within the period laid down by the aid scheme for the granting of the aid, the individual fulfilled all the conditions laid down by national law to receive the aid in question and that the refusal of the competent public authority to grant the aid was unlawful, constitutes existing aid?’

21.By its first question, the referring court is asking, in essence, whether Article 107(1) TFEU should be interpreted as meaning that State aid is to be regarded as having been ‘granted’, within the meaning of that provision, ex tunc, and thus at the time when the competent authority unlawfully refused to allow an individual to be granted aid approved by the Commission, where the unlawfulness of that refusal is established by a national court decision after the expiry of the period laid down by the Commission for the aid to be granted.

22.For the reasons I will explain in the following paragraphs, I am of the view that the answer to that question should be in the affirmative.

23.First of all, it is clear from the settled case-law of the Court that State aid must be regarded as being ‘granted’, within the meaning of Article 107(1) TFEU, on the date on which the right to receive it is conferred on the beneficiary under the applicable national legislation, with the result that the actual transfer of the resources in question is not decisive.

24.It is therefore, in principle, for the referring court to determine, on the basis of the applicable national law, the time when the State aid in question should be regarded as having been granted. To that end, that court must take account of all the conditions laid down by national law for granting the aid in question.

25.On this point, I note, as is clear from the explanations provided by the referring court, that, under the provisions of Latvian law applicable in the present case and, in particular, paragraph 23 of the Latvian aid rules, the aid is deemed to be granted on the date on which the tax authority adopts the decision to grant the aid. In the present case, the refusal to grant the aid requested occurred before the expiry of the time limit of 30 June 2022 laid down in point 22(d) of the communication on the Temporary Framework.

26.The referring court considers, however, that the refusal decisions adopted by the VID could not have given TOODE a definitive right to receive the aid under national law within the meaning of the case-law of the Court, as referred to in point 23 of the present Opinion. In this regard, that court submits that such a right can only arise following a court decision finding that, contrary to the reasons given in those refusal decisions, an undertaking fulfilled all the conditions required by national law to be eligible for that aid on the date on which it applied for the aid, and ordering the competent authority to issue, for the future (ex nunc), a beneficial administrative act by virtue of which the amount of the aid is duly granted and paid to that undertaking.

27.Nevertheless, if the date on which the aid is deemed to be granted under national law corresponds to the date on which the court decision is handed down or the beneficial administrative act adopted in execution of that decision is issued, the action brought by TOODE against the decisions of the VID could be deprived of its effectiveness, as the German Government argues in its written observations. In view of the expiry of the time limit fixed for the granting of the aid, pursuant to point 22(d) of the communication on the Temporary Framework and paragraph 24 of the Latvian aid rules as approved by the Commission, the competent authority could, as argued by the tax authorities before the referring court and the Latvian Government in its written observations, find it impossible to adopt such a corrective administrative act to enforce the court decision handed down after the expiry of the time limit fixed for the granting of the aid, with the result that the court decision would be deprived of any effect.

28.Furthermore, the referring court notes that, if it were to be considered that the aid was granted after the expiry of the time limit fixed for its granting, TOODE, for the same reasons as preventing the adoption of a corrective act by the tax authority to enforce a court decision handed down after that time limit, would risk being unable to make use of the possibility that exists in Latvian law to bring a claim for compensation against the tax authorities or the Latvian State, as such an appeal is likely to come up against the prohibition on granting compensation, in lieu of aid, for the damage suffered by that undertaking due to the failure to grant the aid.

29.Before analysing the situation at issue in the present case, I consider it important to clarify the concept of the right to receive State aid, which is the decisive factor in establishing the moment at which aid should be considered to have been granted within the meaning of the case-law of the Court referred to in points 23 and 24 of the present Opinion.

30.I think it should be stated that the ‘conditions laid down by national law for the granting of the aid in question’, referred to in that case-law, can only be the conditions established by the applicable national legislation at the time when the administrative decision was adopted, which, in the event of disputes, is ultimately for the competent national courts to assess. Therefore, a distinction should be made between, on the one hand, the moment at which the conditions for the granting of aid under national law are objectively met which can in some cases be subject to the condition that a decision is adopted by the relevant authority establishing the right of an undertaking to receive the aid in question, so that the date on which the aid is granted corresponds to the date on which that decision was adopted and, on the other hand, the date on which a national court seised of a legal action against such a decision will be called upon to review the assessment made by the authority as to whether these conditions have been met. Therefore, the case-law of the Court referred to in points 23 and 24 of the present Opinion aims above all to establish the moment at which the conditions for obtaining the aid are met under national law and not to cover the moment at which a national court hearing an action concerning the validity of the authority’s assessment carries out its judicial review and verifies whether those conditions are met. Recognition by a court decision of an existing right under national law does not affect the moment at which the conditions for the granting of the aid were met and at which the competent authority has or should have, where appropriate, adopted a decision granting the aid in question. Such a decision will, in fact, be merely declaratory and not constitutive. It should be noted, in this regard, that while the national court can deliver a judgment from which it follows that one of the parties must, in accordance with national law, receive a sum corresponding to State aid, that does not mean that, in that case, it itself grants that aid. Such a judgment has the sole effect, by virtue of res judicata, of compelling the other party, generally the competent administrative authority, to make payment of the aid in question.

31.If it were to be proven that the only possible interpretation of Latvian law is that described in point 26 of the present Opinion, as appears to emerge from the decision to refer and which it is for the referring court to verify, without it being possible to consider that the date on which the aid is deemed to have been granted is the date on which that aid was wrongfully refused by the tax authority, which involves recognising an ex tunc effect for the corrective administrative decision adopted following a court decision handed down after the expiry of the period allowed for the granting of the aid in question, such an interpretation would be likely to undermine the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

32.Before examining whether the interpretation adopted by the referring court could potentially infringe Article 47 of the Charter, it appears necessary to verify beforehand that the situation described in point 26 of the present Opinion does in fact fall within the scope of the Charter.

33.I would like to point out, in this regard, that, according to Article 51(1) of the Charter, relating to its field of application, the provisions of the Charter are addressed to the Member States only when they are implementing Union law. Where a legal situation does not fall within the ambit of EU law, the Court of Justice does not have jurisdiction in that regard and none of the provisions of the Charter which may have been invoked can constitute, per se, grounds for granting it such jurisdiction. It is not for the Court, in the context of the preliminary ruling procedure laid down in Article 267 TFEU, to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of them is correct.

34.I also note that, in situations falling within the scope of Article 47 of the Charter, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, responsible for ensuring that, pursuant to Article 47 of the Charter, the right to effective judicial protection of those rights is effectively protected in every case.

35.I would point out from the outset that the circumstance referred to by the Commission, according to which the right to receive State aid is a matter of national law, cannot exclude the present case from the scope of Article 47 of the Charter. Although the right to receive the aid in question is conferred by national law and cannot be based on EU law or on the Commission’s decision, the fact remains that in the present case the dispute does not concern the interpretation of the national provisions relating to the granting of the aid in question, but rather the effectiveness of the judicial action brought by TOODE against the initial refusal decision adopted by the VID and the power of that authority to adopt a corrective act to enforce a court decision outside the authorisation period of a State aid scheme approved by the Commission and the consequences arising from that situation under Article 108(3) TFEU and Article 1 of Regulation (EU) 2015/1589.

36.As I explained in point 27 of the present Opinion, if we considered that the date on which the aid was granted within the meaning of Article 107(1) TFEU corresponds, under national law, to the date of adoption of the beneficial administrative act adopted to enforce a court decision handed down after the expiry of the time limit fixed for its granting, that aid could potentially be considered new, unlawful aid, within the meaning of Article 1 of Regulation (EU) 2015/1589, and could not be granted by the tax authorities to enforce the court decision, without disregarding the suspension obligation provided for in Article 108(3) TFEU.

37.However, a situation such as that described in the previous point of the present Opinion not only falls within the scope of the Charter, but is also likely to infringe TOODE’s right to an effective remedy within the meaning of Article 47 of that text.

38.I believe it appropriate to recall, in order to avoid any likelihood of confusion, the difference between, on the one hand, the period of authorisation of a State aid scheme (which is, in this case, associated with the time limit and date of granting of aid), and, on the other hand, the date on which a national court issues a court decision. The jurisdiction of the national court to settle the dispute brought before it and the effects of the decision it will render cannot depend on, let alone be subject to, the timeframe associated with an administrative procedure which, by its very nature, pursues a different objective and is completely unrelated to a (national) legal proceeding.

39.Failing to recognise an ex tunc effect for a corrective decision adopted following the court decision would, in practice, make it virtually impossible to exercise the right to an effective legal remedy, by making the exercise of that right subject to the condition that the court decision be delivered before the expiry of the time limit imposed by an administrative procedure. However, this could lead to the paradoxical situation where the timing of the granting of the aid in question and the classification of that aid as existing or new aid in a corrective decision adopted by the competent authority following the court decision would depend on the speed with which the national court rules on an action brought against an administrative decision.

40.Furthermore, I believe it valuable to point out that, in areas other than that of State aid, the Court has recognised the power of a national court to annul with retroactive effect (ex tunc) a decision taken by a public authority if that court finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal or to guarantee, in general, the effectiveness of the review system.

41.Having regard to the foregoing, I propose that answer to the first question referred for a preliminary ruling should be that Article 107(1) TFEU, read in the light of Article 47 of the Charter, must be interpreted as meaning that State aid must be regarded as having been ‘granted’ on the date on which the competent national authority refused to grant aid to an undertaking, where that refusal was declared unlawful by a national court decision delivered after the expiry of the time limit fixed for the grant of aid, provided that that refusal was notified before the expiry of the time limit laid down for its grant and on a date on which the Commission authorisation covering that aid was in force and the undertaking fulfilled the conditions for receiving that aid under the applicable national rules.

The second question referred for a preliminary ruling

42.By its second question, the referring court is asking, in essence, whether Article 1(b)(ii) of Regulation (EU) 2015/1589 should be interpreted as meaning that existing aid constitutes State aid granted to an undertaking after the expiry of the time limit fixed by the Commission for its granting, to enforce a national court decision declaring that the refusal of the competent authority to grant the aid before the expiry of that period is unlawful.

43.I should note that, in the context of the State aid review system, established in Articles 107 and 108 TFEU, the procedure differs according to whether the aid is existing or new. Whereas existing aid may, in accordance with Article 108(1) TFEU, be lawfully implemented so long as the Commission has made no finding of incompatibility with the internal market, Article 108(3) TFEU provides that plans to grant new aid or alter existing aid must be notified, in due time, to the Commission and may not be put into effect until the procedure has resulted in a final decision.

44.The Court has also stated that measures to grant or alter aid, where the alterations may relate to existing aid or initial plans notified to the Commission, must be regarded as new aid subject to the obligation of notification laid down by Article 108(3).

) In that context, Article 1(b)(ii) of Regulation (EU) 2015/1589 states that ‘existing aid’ consists of ‘authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council’. For its part, Article 1(c) of that regulation provides that ‘new aid’ means all aid schemes and individual aid, which is not existing aid, including alterations to existing aid. Moreover, as is clear from the Court’s case-law, aid granted at a time when the Commission authorisation covering that aid was no longer in force should be considered new aid. (27)

45.From the outset, I note that the answer to the second preliminary question can clearly be inferred from the answer I suggest to the first question, in so far as, if the aid in question is deemed to have been granted on the date of the tax authority’s refusal decisions, and thus at a time when the Commission’s authorisation covering that aid was in force, the aid in question should be considered as authorised aid and, therefore existing aid, within the meaning of Article 1(b)(ii) of Regulation (EU) 2015/1589, even if it is paid after the end of the period of validity of the aid scheme approved by the Commission. In such a case, the payment of that aid is simply the enforcement of the court decision.

46.It should also be pointed out that nothing in the file available to the Court seems to indicate that, in the present case, in the context of the adoption of the corrective administrative act to enforce the national court, the tax authorities would have any leeway or discretionary power to modify the aid established by the Latvian aid scheme, the granting of which was initially refused by those authorities, in such a way that it could be reclassified as new aid, in accordance with the wording of Article 1(c) of Regulation No 2015/1589.

Furthermore, the fact that the aid in question in the main proceedings will be paid after the expiry of the time limit fixed by the Commission for its granting, and outside the specific context characterised by the crisis linked to the COVID-19 pandemic, which has subsided in the meantime, does not allow us to consider that this aid could not be used in accordance with the objective initially planned by the Latvian aid scheme or that it would risk distorting competition on the market. Indeed, it emerges from the case-law of the Court, recalled in point 23 of the present Opinion, that the date of the actual payment of the aid does not affect the right to obtain the aid in question when that aid is granted within the time limit fixed by a decision of the Commission, and the aid in question can thus be paid after the expiry of that time limit. (28) Furthermore, the payment of the aid after the expiry of the aid scheme would not be likely to distort competition on the market, in so far as such a payment would simply restore a right disrupted by the initial decision by the VID and would, in fact, restore the competitive balance on the market. (29) In any case, it follows from the case-law of the Court that it is on the date on which the right to receive State aid was conferred that a measure is likely to distort competition in a way that could affect trade between Member States, within the meaning of Article 107(1) TFEU. (30)

In the light of the foregoing, I propose that the answer to the second question should be that Article 1(b)(ii) of Regulation 2015/1589 must be interpreted as meaning that aid which is paid by the competent national authority after the expiry of the time limit for granting aid laid down in an aid scheme constitutes ‘existing aid’, in compliance with a national court decision finding that, before the expiry of the aforementioned period, the undertaking had fulfilled all the conditions laid down by national law for entitlement to the aid in question and that the authority’s initial refusal to grant the aid was unlawful. In such a case, the aid in question is deemed to have been granted at the time of the authority’s initial refusal to grant the aid.

V.Conclusion

49.In the light of the foregoing considerations, I propose that the Court should answer as follows the question referred for a preliminary ruling from the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia):

(1)Article 107(1) TFEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union should be interpreted as meaning that State aid must be regarded as having been ‘granted’ on the date that the competent national authority refused to grant it to an undertaking, where that refusal has been declared unlawful by a national court decision delivered after the expiry of the time limit for granting the aid, provided that that refusal was issued before the expiry of the time limit for granting the aid and at a date on which the Commission authorisation covering that aid was in force and provided that the undertaking met the conditions for receiving the aid under the applicable national rules.

(2)Article 1(b)(ii) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union should be interpreted as meaning that ‘existing aid’ covers aid paid by the competent national authority after the expiry of the time limit laid down by the aid scheme for granting the aid, pursuant to a national court decision finding that, before the expiry of that time limit, the undertaking had fulfilled all the conditions laid down by national law to receive the aid in question and that the initial refusal of the competent national authority to grant the aid was unlawful. In such a case, the aid is deemed to have been granted at the time of the initial refusal by the competent national authority to grant the aid.

* * *

(1) Original language: French.

(2) Council Regulation of 13 July 2015 laying down detailed rules for the application of Article 108 Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

(3) Latvijas Vēstnesis, 2001, No 164, p. 2551.

(4) Latvijas Vēstnesis, 2020, 2020/222A.2.

(5) By means of subsequent Commission decisions, the time limit for granting the aid was first set at 30 November 2021 [decision SA.64046 (2021/N) of 3 June 2021], then 30 June 2022 [decision SA.100596 (2021/N) of 14 December 2021].

(6) In that regard, the referring court cites, in particular, the judgments of 19 December 2019, Arriva Italia and Others (C‑385/18, EU:C:2019:1121, paragraphs 36 and 37); of 25 January 2022, Commission v European Food and Others (C‑638/19 P, EU:C:2022:50, paragraph 123); and of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 76 and 78).

(7) The referring court cites in this regard the judgment of 7 April 2022, Autonome Provinz Bozen (C‑102/21 and C‑103/21, EU:C:2022:272, paragraphs 31 to 35 and 42).

(8) As is clear from the order for reference, these were, more specifically, questions raised by the Augstākā tiesas Senāts (Supreme Court, Latvia), in the context of case SKA-356/2023. The referring court refers more specifically to Commission opinion No (2023)9452862 in Case S.A.106948.NC, which was issued in the context of other proceedings relating to the application of the Latvian rules on aid and the Temporary Framework.

(9) Thus, the decisive factor for establishing the date on which the right to receive State aid was conferred on its beneficiaries by a particular measure is the acquisition by those beneficiaries of a definitive right to receive that aid and to the corresponding commitment, by the State, to grant that aid. See, to that effect, judgment of 25 January 2022, Commission v European Food and Others (C‑638/19 P, EU:C:2022:50, paragraphs 115 and 123 and the case-law cited).

(10) See judgment of 20 May 2021, Azienda Sanitaria Provinciale di Catania (C‑128/19, EU:C:2021:401, paragraph 45 and the case-law cited).

(11) See judgment of 28 October 2020, INAIL (C‑608/19, EU:C:2020:865, paragraphs 31 and 32 and the case-law cited).

(12) It is also not disputed that TOODE brought legal action to challenge the refusal decision adopted by the tax authorities within the period prescribed.

(13) According to the referring court, this indicates that an undertaking, like TOODE, only acquires a definitive right to receive the aid from the date on which the court decision is handed down or the beneficial administrative act is issued.

(14) See point 18 of the present Opinion.

(15) It is to the legislation and not to the possibly erroneous interpretation of the law by the authority that that case-law refers.

(16) See, to that effect, judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 75 and 76).

(17) If, on that date, the competent authority had acted lawfully and adopted a favourable decision, TOODE would have been granted a legally certain right to the aid under the Latvian aid rules.

(18) See, to that effect, judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 37 and the case-law cited).

(19) See, to that effect, judgment of 22 May 2014, Érsekcsanádi Mezőgazdasági (C‑56/13, EU:C:2014:352, paragraph 53 and the case-law cited).

(20) See judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 115 and the case-law cited). The Court has also stated that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right on which they may rely as such. See, to that effect, judgment of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139, paragraph 80 and the case-law cited).

(21) Furthermore, the fact that the conditions and procedures for granting the aid in question are established on the basis of national law does not detract from the fact that the concept of ‘granting of aid’ falls under EU law.

(22) See, to that effect, judgment of 31 January 2023, Commission v Braesch and Others (C‑284/21 P, EU:C:2023:58, paragraphs 72 and 79 and the case-law cited).

(23) See, to that effect, by analogy, the Opinion of Advocate General Tizzano in case Kutz-Bauer (C‑187/00, EU:C:2002:75, point 66) regarding the possibility of cancelling or amending an administrative act with retroactive effect on the grounds that a person should not suffer any harm due to the time needed to assert his or her rights in court.

(24) See, to that effect, judgment of 12 January 2023, DOBELES HES (C‑702/20 and C‑17/21, EU:C:2023:1, paragraphs 75 and 76).

(25) See judgment of 28 October 2021, Eco Fox and Others (C‑915/19 to C‑917/19, EU:C:2021:887, paragraph 36 and the case-law cited).

(26) See judgment of 28 October 2021, Eco Fox and Others (C‑915/19 to C‑917/19, EU:C:2021:887, paragraph 38 and the case-law cited).

(27) See judgment of 7 April 2022, Autonome Provinz Bozen (C‑102/21 and C‑103/21, EU:C:2022:272, paragraphs 32, 34 and 42).

(28) In this respect, it should be noted that the Commission’s decision does not impose any obligation on Member States to pay the aid within a specific timeframe.

29To the contrary, it could be argued that it is the failure to grant the aid in question that is likely to distort competition in the market or, at the very least, lead to unjustified discrimination against an economic operator, such as TOODE, which has been refused State aid even though it met the conditions for receiving it, while another competing undertaking that fulfils the conditions for granting the aid could be eligible for payment of that aid.

30See, to that effect, judgment of 25 January 2022, Commission v European Food and Others (C‑638/19 P, EU:C:2022:50, paragraph 123).