Judgment — ECLI:EU:C:2004:207
Date: 2004-04-01
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Provisional data;Defences;Obligations of the Member States;Procedure under Article 88 EC
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 1. Actions for failure to fulfil obligations – Non-compliance with a Commission decision finding State aid incompatible with the common market – Pleas in defence – Absolute impossibility of implementation (Art. 88(2) EC) 2. State aid – Commission decision finding aid to be incompatible with the common market – Difficulties in implementation – Obligation on the Commission and the Member State to cooperate in seeking a solution consistent with the Treaty (Arts 10 EC and 88(2) EC) 3. Actions for failure to fulfil obligations – Failure to comply with a Commission decision finding State aid incompatible with the common market – Obligation to recover the aid granted – Reference period – Period fixed by the decision failure to implement which is denied or, subsequently, by the Commission (Art. 88(2), second subpara., EC) 1. The only defence available to a Member State in opposing an infringement action by the Commission under Article 88(2) EC is to plead that it was absolutely impossible for it to implement the decision properly. (see para. 16) 2. A Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, may submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 10 EC, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid. (see para. 17) 3. Because the second subparagraph of Article 88(2) EC does not provide for a pre-litigation phase, in contrast to Article 226 EC, and therefore the Commission does not issue a reasoned opinion allowing Member States a certain period within which to comply with its decision, when the second subparagraph of Article 88(2) EC is applied the reference period can only be that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission. (see para. 24)