Poland wins the case of state aid incompatible with the common market with Autostrada Wielkopolska - Eversheds Sutherland advised the Polish State Treasury in a long-lasting dispute ended before the CJEU

In the case, completed on 11 November, 2021 before European courts, for the return by the company Autostrada Wielkopolska S.A. (AWSA) of received state aid paid from the National Road Fund, a judgment was passed in favor of our client - the State Treasury. Poland participated in the proceedings before European courts of first and second instance, supporting the position of the European Commission.

As a result of changes in regulations in 2005, AWSA - under Annex No 6 to the concession agreement concluded earlier with the State Treasury - received compensation from the State Treasury for lost profits until 2011. Compensation payments were caused by the AWSA’s obligation to cease charging drivers of heavy goods vehicles any tolls for passage with valid vignettes on the section of the A2 motorway it built and has been operating. However, as a result of the verification of the data used for calculation of the compensation, it turned out that the data were incorrect, as a result of which the compensation was paid in an excessive amount. The parties conducted lengthy negotiations which turned into a dispute.

In parallel with the commercial dispute, Poland notified the European Commission that initiated proceedings in the case. In result, the European Commission concluded that state aid in question was incompatible with EU law, and AWSA received compensation higher than allowed under the common market. The Commission ordered Poland to recover the state aid granted. However, the EC's decision was appealed by AWSA to the EU Court, which dismissed the complaint. AWSA appealed against this decision to the CJEU, which in its judgment of 11 November 2021 dismissed the appeal and thereby confirmed the correctness of the EC's decision on recovery of undue state aid to the State Treasury. Although the Polish State Treasury led AWSA to deposit overpaid compensation in the amount of PLN 1.38 billion (about EUR 300 million) already at the beginning of 2018, only at this stage can it be stated that there will be no need to return the amount of overpaid compensation to AWSA.

Throughout the entire case the lawyers of the Polish office of Eversheds Sutherland participated in long negotiations between the parties, as well as took part as counsel or advisers in the subsequent, lasting many years, proceedings involving AWSA and the State Treasury, and then EC and Poland as a EU Member State. These included arbitration disputes, court proceedings, proceedings before the European Commission, the EU General Court and ultimately before the CJEU. In accordance with the relevant provisions of law, at the last stages of the proceedings the public party's representatives were lawyers from the General Prosecutor's Office and the Ministry of Foreign Affairs, respectively.

Krzysztof Wierzbowski (Senior Partner, Head of Infrastructure & Real Estate) has been involved in the case for several years, and Maciej Jóźwiak (Partner, Head of Dispute Resolution) joined the public party advisory team at the stage of proceedings before European courts.