- An aid scheme has three essential features: It defines the conditions on the basis of which individual aid may be granted to undertakings; eligible undertakings are defined in a general and abstract manner; no additional implementing measures are required for the granting of aid.
- A public measure that requires subsequent implementing measures before any aid can be granted to undertakings does not have to be notified to the Commission.
Table of Contents:
Introduction
Members States must notify all new aid to the Commission for authorisation before they implement it. According to the procedural regulation [Regulation 2015/1589], new aid is aid that is not “existing”, including “alterations” to existing aid. In general, existing aid is what has been authorised by the Commission or implemented by the granting Member State before it acceded to the EU.
When Member States implement an authorised scheme, individual awards are still considered to be existing aid even though the Commission has not assessed each award. This is because a scheme is a measure that provides for multiple awards on the basis of criteria that have been assessed by the Commission. A scheme, therefore, is a measure that can be implemented without further measures being necessary.
On 26 March 2026, the Court of Justice of the EU [CJEU], in case C-58/25, Fremoluc & Association for the Promotion of Human Rights and Minorities v Vlaamse Regering, had to interpret the meaning of aid “scheme”. [1]
A Belgian court asked the CJEU for a preliminary ruling on a dispute between Fremoluc and the Association for the Promotion of Human Rights and Minorities, on the one hand, and Vlaamse Regering [the Flemish government], on the other, concerning a Flemish degree that allowed certain municipalities to apply favourable treatment to the transfer of land or housing units and to provide financial support to certain categories of buyers of land or houses. The purpose of the decree in question was to enable Belgian citizens to live in their own region, especially where property prices were particularly high.
Accordingly, the decree authorised municipalities to reserve exclusively, for a period of nine months, the purchase of certain plots of land or houses to buyers whose income was below defined thresholds and who could prove that they had a link to the municipality concerned. In addition, municipalities could reimburse the buyers with up to 50% of the purchase price.
The applicants brought actions for annulment of the decree before the constitutional court of Belgium. They argued that the decree infringed several provisions of the Belgian constitution on non-discrimination, as well as provisions of EU law relating to the freedom of movement and Article 107(1) and Article 108(3) TFEU.
Although the referring court, which was the Belgian constitutional court, had no doubt that the decree violated the Belgian constitution, it was uncertain whether the restrictions and the financial support to buyers provided by the municipalities constituted [indirect] state aid for the sellers, which ought to have been notified to the Commission.
More specifically, the referring court asked, first, whether the decree itself constituted new aid that had to be notified to the Commission, or only subsequent implementing measures. Second, in case the decree constituted state aid, it asked whether the measure created legitimate expectation for individuals who could continue to benefit from it, without suffering an adverse effect from possible repayment of the funding that they had received.
The first question: Was the Flemish decree a state aid scheme?
The first question concerned the authorisation of municipalities to pay to sellers of certain plots of land or houses a proportion of the purchase price of the land or house concerned, on behalf of purchasers.
The CJEU, first, recalled that under Article 108(3) TFEU, the Commission is to be informed of any plans to grant or alter state aid. Furthermore, Article 2(1) of Regulation 2015/1589 provides that any proposed grant of new aid is to be notified to the Commission in good time by the Member State concerned [paragraphs 22 & 23 of the judgment].
Then, it explained that Article 1(c) of that Regulation defines the concept of “new aid” which is any aid scheme or individual aid which is not existing aid, including any alteration to existing aid [para 24].
Furthermore, Article 1(d) of Regulation 2015/1589 states that an aid scheme is any provision on the basis of which, without the need for additional implementing measures, aid may be granted to undertakings [para 25].
Then the CJEU noted that in the present case, the measure concerned municipal financial assistance linked to specific projects. Therefore, it was necessary to determine whether such a measure, without any additional implementing measures, could provide aid to undertakings [para 26].
The CJEU recalled that the classification of a state measure as an aid scheme presupposes the fulfilment of three cumulative conditions. First, aid may be granted individually to undertakings on the basis of that provision. Second, no additional implementing measures are required for the granting of aid. Third, the undertakings to which aid may be granted are defined in a general and abstract manner [para 27].
With respect to the second of those conditions, the CJEU pointed out that according to Article 1(d) of Regulation 2015/1589, an additional implementing measure presupposes the exercise, by the authority responsible, of a discretion enabling it to influence the amount of the aid, its characteristics or the conditions under which that aid is granted [para 29].
Next, the CJEU observed that the Belgian decree laid down general conditions but did not directly establish the necessary arrangements or define all the detailed rules for its implementation [para 30].
More specifically, only municipalities which decided to adopt a municipal regulation laying down detailed rules for the application in their territory of the general framework defined by the decree could provide financial support for the acquisition of land or houses. In addition, the CJEU cautioned that the decree in no way obliged eligible municipalities to adopt such a regulation, thus leaving them the possibility of not to implementing that decree [para 31]
Furthermore, when adopting a municipal regulation for the implementation of the decree, municipalities had to specify a number of aspects that were essential for the implementation of the decree in their territory. They could also attach additional requirements to the conditions laid down in the decree [para 32].
In view of the above findings, the CJEU considered that municipalities could exercise discretion relating both to the very principle of the application of a financial support measure in their respective territories and to the essential aspects of that measures, in particular the conditions for the eligibility of real estate transactions and the extent of the financial support that could be granted [para 33].
Therefore, the Flemish decree did not permit municipalities to grant financial support only on the basis of its provisions. Those municipalities had to adopt additional implementing measures. Consequently, the CJEU held that that legislation could not be regarded as establishing an aid scheme which had to be notified to the Commission in accordance with Article 108(3) TFEU [para 34].
Lastly, the CJEU ruled that since no individual aid could be granted without further implementing measures, the decree itself could not regarded as a measure of individual aid [para 36].
Given the above conclusions, the CJEU considered that there was no need to answer the second question concerning legitimate expectations.
Notes:
[1] The full text of the judgment can be accessed at:https://juris.curia.europa.eu/juris/fiche.jsf?id=C%3B58%3B25%3BRP%3B1%3BP%3B1%3BC2025%2F0058%2FP&nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=c-58%252F25&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lgrec=en&lg=&cid=1609437
