Opinion of the Advocate General — ECLI:EU:C:2001:48
Date: 2001-01-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Failure to comply with a Commission 
decision relating to State aid — Obligation to recover the aid granted — Reference 
period — Period fixed by the decision failure to implement which is denied or, 
subsequently, by the Commission 
(EC Treaty, Arts 93(2), second subpara., and 169 (noiv Arts 88(2), second subpara., 
EC and 226 EC)) 
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SUMMARY — CASE C-378/98 
2. Actions for failure to fulfil obligations — Failure to comply with the obligation to 
recover aid granted — Defence — Absolutely impossible to implement — Obliga­
tion of the Commission and of the Member State, where there are difficulties of 
implementation, to cooperate in finding a solution complying with the Treaty 
(EC Treaty, Arts 5 and 93(2) (now Arts 10 EC and 88(2) EC) 
1. The means of redress provided for by 
the second subparagraph of Arti­
cle 93(2) of the Treaty (now the second 
subparagraph of Article 88(2) EC) is 
merely a variant of the action for a 
declaration of failure to fulfil Treaty 
obligations, specifically adapted to the 
special problems which State aid poses 
for competition within the common 
market. 
Because the second paragraph of Arti­
cle 93(2) of the Treaty does not provide 
for a pre-litigation phase, in contrast to 
Article 169 of the Treaty (now Arti­
cle 226 EC), and therefore the Com­
mission does not issue a reasoned 
opinion allowing Member States a 
certain period within which to comply 
with its decision, when the second 
paragraph of Article 93(2) 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 paras 24, 26) 
2. The only defence available to a Mem­
ber State in opposing an application by 
the Commission under Article 93(2) of 
the Treaty (now 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 to 
implement the decision properly. 
The fact that a Member State can only 
plead in its defence against such an 
action that implementation was abso­
lutely impossible does not prevent a 
State which, in giving effect to a 
Commission decision on State aid, 
encounters unforeseen and unforesee­
able difficulties or becomes aware of 
consequences overlooked by the Com­
mission, from submitting those pro­
blems to the Commission for consid­
eration, together with proposals for 
suitable amendments to the decision in 
question. In such cases, the Commis­
sion and the Member State must, by 
virtue of the rule imposing on the 
Member States and the Community 
institutions a duty of genuine coopera­
tion which underlies, in particular, 
Article 5 of the Treaty (now Article 10 
EC), work together in good faith with a 
view to overcoming the difficulties 
whilst fully observing the Treaty provi-
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COMMISSION V BELGIUM 
sions and, in particular, the provisions 
on aid. 
The condition of absolute impossibility 
is not satisfied where the defendant 
government merely informs the Com­
mission of the legal and practical 
difficulties involved in implementing 
the decision, without taking any step 
whatsoever to recover the aid from the 
undertakings in question, and without 
proposing to the Commission any 
alternative arrangements for imple­
menting the decision which would have 
enabled the difficulties to be overcome. 
Lastly, it is the Member State addressee 
of a decision ordering it to recover 
unlawfully paid aid which is required 
to submit proposals first in cases of 
difficulty. 
(see paras 30-32, 50) 
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