Opinion of the Advocate General — ECLI:EU:C:2000:305
Date: 2000-06-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Spain

Summary of the Judgment 
1. State aid — Definition — National legislative provisions applying to all undertakings 
subject to a court-supervised recovery scheme — Included 
(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 
2. State aid — Commission decision finding aid to be incompatible with the common 
market and ordering it to be repaid — Commission's power to leave it to national 
authorities to calculate the exact amount to be repaid 
(EC Treaty, Art. 93(2) (now Article 88(2) EC)) 
I - 8717 
SUMMARY — CASE C-480/98 
3. State aid — Recovery of unlawful aid — Application of national law — Conditions 
and limits — National legislative provisions precluding the payment of interest in the 
case of undertakings declared insolvent — Whether permissible 
(EC Treaty, Art. 93(2) (now Article 88(2) EC)) 
1. Article 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC) does not 
distinguish between measures of State 
intervention by reference to their 
causes or aims but defines them in 
relation to their effects. 
The mere fact that national legislative 
provisions are applicable to any enter­
prise subject to a court-supervised 
recovery scheme, or which has con­
tracted debts to Social Security and the 
Treasury, is not therefore sufficient to 
enable measures taken by the compe­
tent authorities of a Member State with 
regard to an undertaking subject to 
such a procedure automatically to 
escape being categorised as aid within 
the meaning of Article 92 of the Treaty. 
It is true that the possible loss of tax 
revenue for the State as a result of the 
application to an undertaking of legis­
lation on court-supervised recovery 
schemes and insolvency does not in 
itself justify treating that legislation as 
aid. Such a consequence is an inherent 
feature of any statutory system laying 
down a framework for relations 
between an insolvent undertaking and 
the general body of its creditors, and 
the existence of an additional financial 
burden borne directly or indirectly by 
the public authorities as a means of 
granting a particular advantage to the 
undertakings concerned may not auto­
matically be inferred from it. 
Nevertheless, such an advantage may 
arise as a result of certain measures 
being taken or even as a result of the 
relevant authorities not taking mea­
sures in a particular set of circum­
stances. That is the case where an 
undertaking has been able for several 
years to continue trading without com­
plying with its tax and social security 
obligations. 
(see paras 16-20) 
2. No provision of Community law 
requires the Commission, when order­
ing the recovery of aid declared incom­
patible with the common market, to fix 
the exact amount of the aid to be 
recovered. It is sufficient for the Com­
mission's decision to include informa­
tion enabling the recipient to work out 
himself, without overmuch difficulty, 
that amount. 
I - 8718 
SPAIN V COMMISSION 
The Commission may, therefore, legiti­
mately confine itself to declaring that 
there is an obligation to repay the aid 
in question and leave it to the national 
authorities to calculate the exact 
amount of aid to be repaid where that 
calculation requires tax and social 
security systems, the detailed rules of 
which are laid down in the applicable 
national legislative provisions, to be 
taken into account. 
(see paras 25-26) 
3. Although the recovery of unlawfully 
granted aid, intended to re-establish the 
previously existing situation, must in 
principle take place in accordance with 
the relevant procedural provisions of 
national law, those provisions are to be 
applied in such a way that the recovery 
required by Community law is not 
rendered practically impossible. 
The objective of re-establishing the 
previously existing situation is attained 
once the aid in question, increased 
where appropriate by default interest, 
has been repaid by the recipient, which 
thereby forfeits the advantage which it 
enjoyed over its competitors. 
The national legislation applicable in 
the present case provides that the debts 
of undertakings which have been 
declared insolvent cease to produce 
interest with effect from the date of 
the relevant declaration. Such a rule, 
justified by the common interest of all 
the creditors in not burdening the 
insolvent undertaking's assets with 
new debts likely to worsen the situa­
tion, applies to all creditors alike, 
private or public, in all procedures of 
this kind. 
Taking account of the legislation's 
objective, the absence of any discrimi­
nation in its application and the fact 
that it applies only to interest falling 
due after the declaration of insolvency 
on aid unlawfully received before that 
declaration, the legislation cannot be 
regarded as rendering the recovery of 
aid required by Community law vir­
tually impossible. 
(see paras 34-37) 
I - 8719