Why don’t Dutch judges want to know about State aid law?
Interest amongst judges for State aid law seems to be limited. This is unfortunate, because State aid law is arguably fundamental to EU law. On the other hand… who can really blame them?
Last Friday, the Leiden Expert Group on State Aid organized an expert meeting on the role of national courts in State aid cases. Dutch administrative courts, to be exact. Of course, the meeting was aimed at experts from all professions. But it was particularly hoped that judges dealing (or expecting to deal) with State aid issues would also be reached.
Although some judges did attend and made valuable contributions to the meeting, quite a few more had been invited. We had also invited a good number of judges to an introductory course. Attendance was, let’s say, disappointing. Which leads to the question: why don’t Dutch judges want to learn more about State aid law?
I’m no judge, but I’ll offer some suggestions nevertheless.
1. Dutch judges are very, very busy. So they have to be very selective in choosing courses they want to take.
2. State aid cases are rare. Arguments based on State aid law are definitely made before national courts, and increasingly so. However, given the range of cases in which such an argument may arise, it is not so likely that a particular judge will deal with a State aid case more than once in his career. This applies especially to courts of first instance, of which there are many.
3. State aid is often one of many grounds invoked. Who wants to spend precious time (see 1) becoming an expert on a legal argument that is merely used as part of a scattergun approach? It may feel wiser to focus on arguments that are actually given some weight by the parties themselves.
4. What the applicant wants and what the private enforcement of State aid law aims to accomplish is not one and the same thing. If a party makes the effort to start proceedings against the decision to confer an advantage on another party, it is likely that recovery of that advantage won’t be the first thing on its mind. Case law suggests that many parties are actually hoping to receive the advantage themselves, or at least part of it. Or, for example, they intend to invoke State aid law to stop the planned extension of an airport – although their real objection to the plan is that the noise created by landing aircrafts would decrease the value of their homes.
Is this a problem? Well, without wanting to be too conclusive (or judgmental), I would propose on the basis of the case law that Dutch judges could definitely benefit from improved knowledge in the area of State aid law. This in itself could be a solution for some of the issues outlined above. Increased knowledge of State aid law will improve the quality of the body of case law and, consequently, the quality of the arguments made before the courts. Hopefully, the European Commission’s plans to draft a new Enforcement Notice will prove to be a much needed impetus.