C-24/25

Provisional text ENORDER OF THE COURT (Seventh Chamber) 31 October 2025 (*) ( Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Question the answer to which may be clearly deduced from the Court’s existing case-law – State aid – Article 108 TFEU – Decision of the European Commission ordering the recovery of unlawful aid – Regulation (EU) 2015/1589 – Article 16(3) – Article 17(1) – National legislation laying down a time limit shorter than the limitation period laid down by EU Law – Principle of effectiveness ) In Case C‑24/25, REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Portugal), made by decision of 28 October 2024, received at the Court on 16 January 2025, in the proceedings Mission – Trading, Gestão e Serviços, Unipessoal, Lda (Zona Franca da Madeira) v Autoridade Tributária e Assuntos Fiscais da Região Autónoma da Madeira, THE COURT (Seventh Chamber), composed of F. Schalin, President of the Chamber, M. Gavalec and Z. Csehi (Rapporteur), Judges, Advocate General: A. Rantos, Registrar: A. Calot Escobar, having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice, makes the following Order 1        This request for a preliminary ruling concerns the interpretation of Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and of Article 5(1) of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira – (ZFM) – Regime III (OJ 2022 L 217, p. 49). 2        The request has been made in proceedings between Mission – Trading, Gestão e Serviços, Unipessoal, Lda (Zona Franca da Madeira) (‘Mission – Trading’) and the Autoridade Tributária e Assuntos Fiscais da Região Autónoma da Madeira (Authority for Tax and Fiscal Affairs of the Autonomous Region of Madeira, Portugal; ‘the tax authority’) concerning tax enforcement proceedings brought by the latter against Mission – Trading, for the purpose of the recovery of State aid which had been unlawfully granted to Mission – Trading.  Legal context  European Union law  Regulation 2015/1589 3        Article 16 of Regulation 2015/1589, entitled ‘Recovery of aid’, provides, in paragraph 3: ‘Without prejudice to any order of the Court of Justice of the European Union pursuant to Article 278 TFEU, recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the [European] Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Union law.’ 4        Article 17 of that regulation, entitled ‘Limitation period for the recovery of aid’, states, in paragraph 1: ‘The powers of the Commission to recover aid shall be subject to a limitation period of 10 years.’  Decision 2022/1414 5        Article 1 of Decision 2022/1414 is worded as follows: ‘The aid scheme “Zona Franca da Madeira (ZFM) – Regime III”, to the extent that it was implemented by Portugal in breach of Commission Decision C(2007)3037 final[ of 27 June 2007 in Case N 421/2006], and of Commission Decision C(2013)4043 final[ of 2 July 2013 in Case SA.34160 (2011/N)], was unlawfully put into effect by Portugal in breach of Article 108(3) [TFEU] and is incompatible with the internal market.’ 6        Article 4(1) of that decision provides: ‘Portugal shall recover the incompatible aid granted under the scheme referred to in Article 1 from the beneficiaries.’ 7        Under Article 5 of that decision: ‘1.      Recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective. 2.      Portugal shall ensure that this Decision is implemented within eight months following the date of notification of this Decision.’  Portuguese law  Code of administrative and judicial procedure in tax matters 8        The Código de Procedimento e de Processo Tributário (Code of administrative and judicial procedure in tax matters), in the version applicable in the main proceedings, contains Article 204 entitled ‘Grounds for opposition to enforced recovery’, the paragraph 1 of which states: ‘1 An opposition to enforced recovery may only be based on the following grounds: … (d)      the debt forming the subject of the enforced recovery is time barred; …’  The General Tax Law 9        The Lei Geral Tributária (General Tax Law) adopted by the Decreto-Lei no 398/98 (Decree-Law No 398/98), of 17 December 1998 (Diário da República, I, series-A, No 290, of 17 December 1998), in the version applicable in the main proceedings, contains Article 45, entitled ‘Time limit for the right of assessment’ and is worded as follows: ‘1.      The right to assess taxes shall be time barred if the taxpayer is not validly notified of the assessment within a period of four years, unless otherwise provided for by law. 2.      In the event of a manifest error in the taxable person’s declaration, the time limit referred to in the preceding paragraph shall be three years. 3.      In the case of a tax deduction or tax credit, the time limit shall be the period for exercising that right. 4.      That time limit shall begin to run, in the case of regular taxes, from the end of the year in which the chargeable event occurred and, in the case of single-obligation taxes, from the date on which the chargeable event occurred, with the exception of value added tax and income taxes where taxation is effected by a definitive retention at source, in which case that period shall run from the beginning of the calendar year following the year in which the tax became due or the chargeable event occurred. … 7.      The period laid down in paragraph 1 shall be 12 years where the right of assessment relates to tax matters connected with: (a)      a country, territory or region subject to a significantly more favourable tax regime, appearing on a list approved by order of the Minister of Finance, which should have been declared to the tax authorities but was not, or (b)      accounts for deposits or securities opened with financial institutions not resident in Member States of the European Union, or with branches, situated outside the European Union, of resident financial institutions, the existence and identification of which is not mentioned by the persons liable to personal income tax in the tax return for the year in which the chargeable events occurred.’  The dispute in the main proceedings and the question referred for a preliminary ruling 10      Following Decision 2022/1414, the tax authority initiated tax enforcement proceedings against Mission – Trading for the purpose of the recovery of State aid which had been granted to that company as part of the ‘Zona Franca da Madeira (ZFM) – Regime III’ aid scheme in the form of a reduction in corporate income tax for the financial year 2015. 11      Mission – Trading then filed an opposition to the proceedings with the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Portugal), the referring court, seeking to discontinue those proceedings. 12      In support of its opposition, Mission – Trading submitted, inter alia, that the tax authority was not justified in requiring the company to pay the tax debt forming the subject matter of the proceedings on the ground that it had not been notified of the assessment of that tax within the time limit set out in Article 45 of the General Tax Law. 13      The referring court was uncertain as to the compatibility of that Article 45 with Article 16(3) of Regulation 2015/1589 and with Article 5 of Decision 2022/1414. 14      On the one hand, the referring court points out that Portuguese law does not provide for any specific regime concerning the time limit for the recovery of State aid. In the absence of a rule of national law precluding the application of general limitation periods, Article 45 of the General Tax Law would be applicable. On the other hand, it notes that, in the present case, Decision 2022/1414 was adopted after the expiry of the time limit laid down in national law. 15      In those circumstances the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must the expression “recovery […] shall be immediate and effective” referred to in Article 5 of [Decision 2022/1414] and the expression “recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision” referred to in Article 16(3) of [Regulation 2015/1589] be interpreted as precluding the application of rules of national law (in particular Article 45 of the Lei Geral Tributária (General Tax Law)) which lay down a [time limit] for the right of assessment that extends beyond the expiry of the period provided for in those rules for that purpose?’  Consideration of the question referred 16      Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law. 17      It should also be borne in mind that the judicial cooperation established by Article 267 TFEU is based on a clear separation of functions between the national courts and the Court of Justice. On the one hand, that provision does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the institutions, bodies, offices and agencies of the European Union (see, to that effect, judgment of 18 May 2021, Asociația ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 201 and the case-law cited). On the other hand, in accordance with paragraph 11 of the Recommendations of the Court of Justice to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C, C/2024/6008), it is for the national courts to draw case-specific conclusions from the elements of interpretation provided by the Court in the proceedings pending before them (see, to that effect, judgment of 25 October 2018, Roche Lietuva, C‑413/17, EU:C:2018:865, paragraph 43). 18      In the present case, the Court considers that the interpretation of EU law sought by the referring court may be clearly deduced from the judgments of 30 April 2020, Nelson Antunes da Cunha (C‑627/18, EU:C:2020:321), and of 14 December 2023, I (Repayment of levies) (C‑655/22, EU:C:2023:993). It is therefore appropriate to apply Article 99 of the Rules of Procedure in the present case. 19      As is apparent from paragraph 17 of the present order, it will be for the referring court to draw case-specific conclusions, in the dispute in the main proceedings, from the elements of interpretation arising from that case-law of the Court. 20      In its question, the referring court asks, in essence, whether Article 16(3) of Regulation 2015/1589, in so far as it relates to the principle of effectiveness, should be interpreted as precluding the application of a national time limit for the recovery of aid where this deadline has expired even before the adoption of the Commission decision finding this aid unlawful and ordering its recovery. 21      As regards the application of national rules on limitation periods, the Court found inter alia in paragraphs 41, 44 and 46 of the judgment of 30 April 2020, Nelson Antunes da Cunha (C‑627/18, EU:C:2020:321): ‘41      Although national limitation rules are, in principle, applicable to the recovery of unlawful aid, those rules must, however, be applied in such a way that the recovery required by EU law is not rendered practically impossible and the interests of the European Union are taken fully into consideration (see, to that effect, judgment of 26 June 2003, Commission v Spain, C‑404/00, EU:C:2003:373, paragraph 51 and the case-law cited). … 44      … it is clear from the settled case-law of the Court that, in general, limitation periods fulfil the function of ensuring legal certainty (judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo, C‑387/17, EU:C:2019:51, paragraph 71 and the case-law cited). … 46      … it is in accordance with the Court’s settled case-law that, in view of the mandatory nature of the supervision of State aid by the Commission pursuant to Article 108 TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article, and furthermore, an economic operator exercising due care should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 98 and the case-law cited). … the same is true in the case of individual aid and aid granted under an aid scheme.’ 22      In respect of limitation periods or time limits and in respect of the principle of effectiveness, the Court has further held, in paragraph 44 of the judgment of 14 December 2023, I (Repayment of levies) (C‑655/22, EU:C:2023:993): ‘As regards … compliance with the principle of effectiveness, it is apparent from the settled case-law of the Court that the fixing of reasonable limitation periods or time-bars in principle satisfies the requirement of effectiveness since it constitutes an application of the fundamental principle of legal certainty which protects both the person and the administration concerned, even though the passing of such time limits is, by its nature, liable to prevent the persons concerned from asserting their rights in whole or in part (judgment of 19 December 2019, Cargill Deutschland, C‑360/18, EU:C:2019:1124, paragraph 52 and the case-law cited).’ 23      Where the limitation period, provided for by national law and applicable to the recovery of aid unduly paid, has expired even before the adoption, by the Commission, of a decision finding that aid to be incompatible and requiring its recovery, the Court has repeatedly held, as is apparent from paragraphs 46, 50 to 52, 60 and 61 of the judgment of 30 April 2020, Nelson Antunes da Cunha (C‑627/18, EU:C:2020:321), that: ‘46      It should also be noted that it is in accordance with the Court’s settled case-law that, in view of the mandatory nature of the supervision of State aid by the Commission pursuant to Article 108 TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article, and furthermore, an economic operator exercising due care should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 98 and the case-law cited). … The same is true in the case of individual aid and aid granted under an aid scheme. … 50      … the Commission can still, within the 10-year period provided for in Article 17(1) of Regulation 2015/1589, request the recovery of unlawful aid, despite the fact that a limitation period applied in the national proceedings may have expired (see, to that effect, judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 114). 51      Moreover, as is clear from the case-law cited in paragraph 46 of the present judgment, Nelson Antunes da Cunha cannot in the present case validly rely on a legitimate expectation that the aid at issue is lawful, as that aid was implemented by the Portuguese Republic without prior notification to the Commission. 52      The referring court must therefore refuse of its own motion to apply a national limitation period, applicable to the recovery of aid that is to be recovered, which expired even before the adoption of the Commission recovery decision. … 60      In such circumstances, the principle of legal certainty, which the limitation periods seek to ensure, cannot preclude repayment of aid that is found to be incompatible with the internal market … 61      In the light of the foregoing considerations, the answer to the fourth question is that Article 16(2) of Regulation 2015/1589, according to which the aid to be recovered includes interest, and the principle of effectiveness, referred to in Article 16(3) of that regulation, must be interpreted as precluding the application of a national limitation period to the recovery of aid where that period has expired even before the adoption of the Commission decision finding that aid to be unlawful and ordering its recovery …’ 24      In the present case, it is apparent from Article 1 of Decision 2022/1414 that the aid scheme ‘Zona Franca da Madeira (ZFM) – Regime III’, to the extent that it was implemented by the Portuguese Republic in breach of Commission Decision C(2007)3037 final of 27 June 2007, in Case N 421/2006 and of Commission Decision C(2013)4043 final of 2 July 2013, in Case SA.34160 (2011/N), was unlawfully put into effect by that Member State, in breach of Article 108(3) TFEU. 25      The referring court states that the national time limit, which is applicable to the recovery procedure for aid which has been unlawfully paid to Mission – Trading under that aid scheme, expired before the adoption of Decision 2022/1414. 26      It follows from the Court’s case-law, as recalled in the present order, that, despite the expiry of the limitation period or time limit set out in national law, the Commission may still, before the expiry of the 10-year limitation period set out in Article 17(1) of Regulation 2015/1589, seek the recovery of unlawful aid. 27      In those circumstances, the answer to the question referred is that Article 16(3) of Regulation 2015/1589, in so far as it relates to the principle of effectiveness, must be interpreted as precluding the application of a national time limit for the recovery of aid where that period has expired even before the adoption of the Commission decision finding that aid to be unlawful and ordering its recovery.  Costs 28      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. On those grounds, the Court (Seventh Chamber) hereby rules: Article 16(3) of Council Regulation (EC) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU], in so far as it relates to the principle of effectiveness, must be interpreted as precluding the application of a national time limit for the recovery of aid where that period has expired even before the adoption of the European Commission decision finding that aid unlawful and ordering its recovery. [Signatures] *      Language of the case: Portuguese.