and medium-sized enterprises (SMEs) and midcaps affected by the COVID 19 outbreak in the following sectors: (i) tourism; (ii) restaurants (and other similar activities); (iii) extractive and Manufacturing industry; and (iv) travel agency activities, touristic animation, event organisation (and similar activities) with a total budget of €3 billion55. Irrespective of the public authorities’ approach, there are several situations when it is advisable for potential beneficiaries to undertake a step by step analysis of the State support so as to (i) ascertain whether it constitutes state aid 56; in the affirmative case, (ii) whether it is subject to formal notification by the Member State in question or follows any administrative proceedings57 and (iii) which are the legal implications arising from the advantage resulting from state aid (such as reporting it in other instances or the possibility to cumulate with aid already received). Moreover, whether in the quality of potential beneficiary or third party considered damaged by an unlawful state aid measure, it is important to remind that unlawful aid has legal consequences to beneficiaries, such as the reimbursement of the same aid (with interest) and also that national courts are competent to apply TFEU rules on state aid and rule on unlawfulness and damages58. The prohibition of “purely domestic” state aid in Portugal is provided for in article 65(1) of the CA. The PCA “can analyse any aid or projected aid and, as it sees fit, formulate for the Government or any other public body its recommendations for eliminating any negative impact on competition”, making public its recommendations on its Internet site59. In practice, the difference of powers when compared to the Commission’s ones under Article 107 and 108 before the CJEU against the referred judgments. On September 28, 2023 the CJEU rejected all the arguments put forward by Ryanair and confirmed the referred GCEU’s judgments. See Cases C-320/21 P and C-321/21 P| Ryanair v Commission. 55 Press release available at https://ec.europa.eu/commission/presscorner/detail/en/IP_20_506. For a more detailed description of the Portuguese aid measures targeting the tourism sector, see pages 417 to 482 of the 2022 ESTHE’s book mentioned above in note 2. 56 Useful guidance is found in the Commission’s Notice on the notion of State aid as referred to in Article 107(1) of the TFEU, published in OJ C 262, 19.7.2016, p. 1–50. 57 For instance, de minimis aid is not subject to formal notification to the Commission but the Member State granting the same is required to use a central register in order to keep a record of all de minimis aid. See Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the TFEU, published in OJ L 352, 24.12.2013, p. 1–8. 58 For more information, see notably the Commission’s webpage on this topic available here https:// competitionpolicy.ec.europa.eu/state-aid/national-courts_en?prefLang=pt 59 Article 65(2) and (4) CA. And the PCA “shall monitor the execution of its recommendations, and can request from any entities information relating to the implementation of such measures”, according to 65(3) CA. 140 MARGARIDA ROSADO DA FONSECA
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