Opinion of the Advocate General — ECLI:EU:C:2017:245
Date: 2017-03-30
Language of the case: French
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 13 September 2017 1. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Defences — Legality of the decision called into question — Inadmissibility (Arts 108(2) TFEU and 263 TFEU) 2. Actions for failure to fulfil obligations — Non-compliance with the obligation to recover unlawful aid — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Justification based on internal difficulties — Not permissible (Art. 4(3) TEU; Arts 108(2) TFEU and 260(2) TFEU) 3. State aid — Examination by the Commission — Determination of the beneficiary of the aid — Actual enjoyment — Possibility of attributing the amount of the aid in equal shares to the economic sectors concerned — Precluded (Arts 107(1) TFEU and 108(2) TFEU) 1. In respect of State aid, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, the only defences available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU are to plead that it was absolutely impossible for it to implement the decision of which it was the addressee or that the recovery decision is non-existent, assuming that the decision contains particularly serious and manifest defects. An argument to the effect that the financing of the screening tests for transmissible spongiform encephalopathies in bovine animals was wrongly classified is in fact tantamount to contesting the very existence of State aid and, consequently, the validity of the recovery decision, without, however, going so far as to contend that that decision is non-existent. Thus, this argument can be relied upon only in the procedural context of an action for annulment, as provided for in Article 263 TFEU. (see paras 38, 39) 2. In respect of State aid, apprehension of even insuperable internal difficulties, relating inter alia to verification of the situation of each undertaking concerned for the purposes of recovering unlawful aid or to the wide reach of the aid scheme across the fabric of national production industry, cannot justify a failure by a Member State to fulfil its obligations under EU law. (see para. 44) 3. In order to determine the beneficiary of State aid, it is necessary to identify the undertakings which actually enjoyed the benefit of it. It is therefore not possible to calculate the amount of the aid to be recovered by dividing the overall amount of the aid in equal shares between the economic sectors designated by the Commission decision ordering recovery of the aid. Moreover, whilst it is incumbent upon the Commission to prove the allegation that the obligation of recovery has not been fulfilled, by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, it is incumbent, on the other hand, upon the Member State concerned, where failure to recover some or all of the aid at issue has been established, to substantiate the reasons why recovery is not required so far as concerns certain beneficiaries. (see paras 46, 47)