Opinion of the Advocate General — ECLI:EU:C:2009:106
Date: 2009-02-19
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary of the Judgment State aid – Commission decision finding aid incompatible with the common market and ordering its repayment – Possible for the Commission to base its decision on the information available (Art. 88(2) EC; Council Regulation No 659/1999, Arts 13(1) and 14(1)) Article 13(1) of Regulation No 659/1999 relating to the application of Article 88 EC empowers the Commission, once it finds that aid has been granted or altered without notification, to adopt a decision on whether the aid is compatible or not with the common market on the basis of the information available, when it is faced with a Member State which does not fulfil its duty to cooperate and has not provided the Commission with the information requested. Furthermore, if appropriate, such a decision may, on the conditions laid down in Article 14 of that regulation, call for the recovery of the amount of the aid which has already been paid. However, that opportunity afforded the Commission cannot be interpreted as releasing that institution entirely from the obligation to base its decisions on reliable and coherent evidence to support the conclusions which it arrives at. The Commission is, at the very least, required to ensure that the information at its disposal, even if incomplete and fragmented, constitutes a sufficient basis on which to conclude that an undertaking has benefited from an advantage amounting to State aid. Such considerations are even more relevant when the Commission orders the recovery of the aid from the beneficiary, the very aim of such reimbursement being to eliminate the distortion of competition brought about by a certain competitive advantage and, thus, to re-establish the status quo before the aid was granted. Therefore, the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage. (see paras 54-58)