COMPETITION • EUROPEAN LAW • STATE AID
Measures taken by the Commission benefit from a presumption of legality that rules out the possibility of appeals against them having any suspensive effect. On the other hand, Article 278 TFEU gives the addressees of such acts the possibility of obtaining a stay of enforcement. A stay of enforcement may be granted if it is established that its grant is justified, prima facie, in fact and in law (fumus boni juris) and that it is necessary to avoid serious and irreparable damage to the interests of the applicant after balancing the interests of the parties.
In matters relating to State aid, the beneficiaries of unlawful aid primarily invoke the harm done to their interests by the recovery decision as the main reason for requesting such a stay. However, the financial loss inherent in the recovery decision is not sufficient to demonstrate the serious and irreparable harm justifying the stay of enforcement. Only harm that is likely to jeopardize the very survival of the undertaking is likely to be accepted. The damage must be to the beneficiary’s own interest: damage to the interests of employees is not taken into consideration.
The condition relating to urgency is not fulfilled where the applicant has maintained its plea to acknowledge insolvency despite the adoption of an order to stay enforcement of the decision or where the undertaking in question does not bring evidence of having used all internal remedies for the obtaining of such a stay.
