Opinion of the Advocate General — ECLI:EU:C:2001:15
Date: 2001-01-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Non-compliance with a Commission 
decision on State aid — Fleas in defence — Plea alleging that the decision is 
unlawful — Inadmissable — Limits — Non-existent measure 
(EC Treaty, Art. 93(2), second subpara, (now Article 88(2), second subpara., EC); Arts 
226 EC, 227 EC, 230 EC and 232 EC) 
2. Actions for failure to fulfil obligations — Non-compliance with a Commission 
decision on State aid — Pleas in defence — Absolutely impossible to implement 
(EC Treaty, Art. 93(2) (now Article 88(2) EC)) 
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SUMMARY — CASE C-261/99 
3. State aid — Commission decision finding aid incompatible with the common 
market — Difficulties of implementation — Obligation of the Commission and the 
Member State to cooperate in seeking a solution compatible with the Treaty 
(EC Treaty, Arts S and 93(2), first subpara, (now Articles 10 EC and 88(2), first 
subpara., EC)) 
4. Acts of the institutions — Presumption of legality — Action for annulment brought 
against an act — No effect 
1. The system of remedies set up by the 
Treaty distinguishes between actions 
under Articles 226 and 227 EC, which 
are directed to obtaining a declaration 
that a Member State has failed to fulfil 
its obligations, and those under Arti­
cles 230 EC and 232 EC, which are 
directed to obtaining judicial review of 
measures adopted by the Community 
institutions or of failure on their part to 
act. Those remedies have different 
objectives and are subject to different 
rules. In the absence of a provision of 
the Treaty expressly permitting it to do 
so, a Member State cannot, therefore, 
properly plead the unlawfulness of a 
decision addressed to it as a defence in 
an action for a declaration that it has 
failed to fulfil its obligations arising out 
of its failure to implement that deci­
sion. It is immaterial whether such 
unlawfulness is pleaded in the action 
brought against the Member State or, 
as in this case, in an action for annul­
ment of the decision at issue. 
The position could be different only if 
the measure in question contained 
particularly serious and manifest 
defects such that it could be deemed 
non-existent. That also applies to an 
action for failure to fulfil obligations 
based on the second subparagraph of 
Article 93(2) of the Treaty (now the 
second subparagraph of Article 88(2) 
EC). 
(see paras 18-20) 
2. The only defence available to a Mem­
ber State in opposing an application by 
the Commission under Article 93(2) of 
the Treaty for a declaration that it has 
failed to fulfil its Treaty obligations is 
to plead that it was absolutely impos­
sible for it to implement the decision 
properly. 
(see para. 23) 
3. Where a Member State, when imple­
menting a Commission decision relat­
ing to State aid, encounters unforeseen 
and unforeseeable difficulties or 
becomes aware of consequences not 
contemplated by the Commission, it 
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COMMISSION V FRANCE 
must submit those problems for con­
sideration by the Commission, together 
with proposals for suitable amend­
ments to the decision in question. In 
such a case the Commission and the 
Member State concerned must respect 
the principle underlying Article 5 of 
the Treaty (now Article 10 EC), which 
imposes a duty of genuine cooperation 
on the Member States and the Com­
munity institutions, and must work 
together in good faith with a view to 
overcoming difficulties whilst fully 
observing the Treaty provisions, and 
in particular the provisions on aid. 
(see para. 24) 
4. A decision is presumed to be lawful 
and, despite the existence of an action 
for annulment, it remains binding in all 
respects on the Member State to which 
it is addressed. 
(see para. 26) 
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