Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 26 May 2011 - Kremikovtsi AD v Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma (Minister for the Economy, Energy and Tourism and the Deputy Minister for the Economy, Energy and Tourism)
(Case C-262/11)
Language of the case: Bulgarian
Referring court
Administrativen sad Sofia-grad
Parties to the main proceedings
Applicant: Kremikovtsi AD
Defendant: Ministar na ikonomikata, energetikata i turizma i zamestnik-ministar na ikonomikata, energetikata i turizma (Minister for the Economy, Energy and Tourism and the Deputy Minister for the Economy, Energy and Tourism)
Questions referred
1. Do the provisions of the Europe Agreement and particularly of the EU-Bulgaria Association Council decisions apply to State aid that was granted prior to the accession of the Republic of Bulgaria to the European Union pursuant to the provisions of the Europe Agreement and, in particular, pursuant to Article 9(4) of Protocol 2 where an assessment of the incompatibility of State aid granted in that way takes place after the date of accession of the Republic of Bulgaria to the European Union? If the answer to this question is in the affirmative the following interpretation is required:
(a) Is the second paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that only the European Commission may establish whether the restructuring programme and the plans have been fully implemented in accordance with Article 2 of the Additional Protocol and are in compliance with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the answer to this question is in the negative the following interpretation is required:
(b) Is the third paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that the competent national authority of the Republic of Bulgaria has the right to adopt a decision on the recovery of State aid that does not comply with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the Court of Justice should answer this question in the negative an interpretation of the following question is requested:
2. Is the provision in paragraph 1 of the part of Annex V to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania to the European Union relating to competition rules to be interpreted as meaning that the State aid in question constitutes 'new aid' within the meaning of subparagraph 2 of paragraph 1 of that Annex? If so, are the provisions of Articles 107 and 108 TFEU (Articles 87 EC und 88 EC) on State aid and the provisions of Regulation No 659/1999
1 to apply in such a case to such 'new aid'?
(a) If the answer to this question is in the negative the following question will have to be answered: Are the provisions in paragraph 1 of Annex V to the Act of Accession to be interpreted as meaning that the competent national authorities cannot take steps to recover State aid such as that in the main proceedings before the Commission has taken a decision by which the State aid at issue is declared incompatible with the common market?
(b) If the answer given to the previous question is in the affirmative: Is the Commission Decision of 15 December 2009 produced to the Varhoven administrativen sad (Higher Administrative Court) to be considered a negative decision on unlawful aid within the meaning of Article 14 of Regulation No 659/1999?
____________1 - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)