Judgment — ECLI:EU:C:2006:777
Date: 2006-12-14
Language of the case: Spanish
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Defences;Obligations of the Member States;Procedure under Article 88 EC
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 1. Actions for failure to fulfil obligations – Failure to comply with a Commission decision on State aid (Art. 88(2), second subpara., EC) 2. Actions for failure to fulfil obligations – Failure to observe the requirement to recover aid granted – Defences (Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3)) 1. Because the second subparagraph of Article 88(2) EC, on the procedure for actions for failure to fulfil obligations in the field of State aid, 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 former provision 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. 53) 2. When negative decisions are taken in cases of unlawful aid, the recovery thereof ordered by the Commission takes place under the conditions set out in Article 14(3) of Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [88 EC]. The only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it properly to implement the decision ordering recovery. In that respect, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision enabling those difficulties to be overcome. (see paras 71-72, 74)