In an order of April 18, 2013 (Case C-368/12 – Adiamix v. DDFP de l’Orne), the European Court of Justice (ECJ) recalled that, when referring a request for a preliminary ruling, the domestic judge must act as a filter and not simply pass on a question about the argument of one of the parties without himself reviewing its merits.
The case in question was a proceeding involving France for the recovery of unlawful aids. Adiamix had benefited from the French tax exemption regime for companies acquiring the assets of firms in difficulty. Already in 2004, the Commission had considered that this tax exemption regime was incompatible with the prohibition of State aids and had ordered the recovery of the exemptions already granted. Neither Adiamix, nor any other beneficiaries, had attempted a timely direct action for annulment of this decision before the Union’s jurisdictions. In addition, France had been sanctioned by the ECJ in 2008 (case C-214/07) for being in breach of its recovery obligation. Yet in this proceeding no argument had been raised about the validity of the decision and the judgment concluded that, as there was no absolute impossibility for France to recover the aids, the recovery decision had to be enforced by the French authorities.
The French tax administration subsequently issued a recovery notice for the attention of Adiamix which, if it wanted to challenge it, was left with practically no other choice than to plead the invalidity of the Commission’s decision on which the recovery notice was based. Although Adiamix managed to convince the Nantes Administrative Court of Appeal to refer the question to the ECJ, the question referred by the Nantes Court was inadmissible since it did not indicate what doubt the Court itself had about the qualification of State aid in that case.
Still, it is highly unlikely that the ECJ would have annulled the Commission’s decision. First, Adiamix could in theory have brought a direct action against this decision, which renders the plea of illegality inadmissible. Then, the ECJ had already acknowledged France’s breach for failing to enforce the Commission’s decision and the validity of the decision had not been challenged at that time. To avoid recovery at a later stage, it is still preferable to bring a direct action against the Commission’s decision.