Opinion of the Advocate General — ECLI:EU:C:2020:179
Date: 2020-03-05
Language of the case: French
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-212/19 — 1 
Case C-212/19 
Request for a preliminary ruling 
Date lodged: 
6 March 2019 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer:  
15 February 2019 
Applicant: 
Ministre de l’Agriculture et de l’Alimentation 
Defendant: 
Compagnie des pêches de Saint-Malo 
  
[…] 
 
MINISTRE DE L’AGRICULTURE 
ET DE L’ALIMENTATION 
 
v 
Compagnie des pêches de Saint-
Malo 
 
 The Conseil d’État acting in its judicial 
capacity 
 
[…] 
 
 
Session of 1 February 2019 
Reading of 15 February 2019 
 
 
Having regard to the following procedure: 
Compagnie des pêches de Saint-Malo (a company) applied to the tribunal 
administratif de Rennes (Administrative Court, Rennes) for the annulment of the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-212/19 
 
2  
order for payment of 22 February 2013 issued by the directeur régional des 
finances publiques de Bretagne (Regional Director of Public Finances for 
Brittany) for recovery of the sum of EUR 84 550.08. By a judgment [...] of 
25 June 2015, the Administrative Court annulled that order for payment. 
By a judgment [...] of 14 April 2017, the cour administrative d’appel de Nantes 
(Administrative Court of Appeal, Nantes) dismissed the appeal brought by the 
Ministre de l’environnement, de l’énergie et de la mer, chargé des relations 
internationales sur le climat (Minister for the Environment, Energy and the Sea, in 
charge of international relations on climate) against the judgment of the 
Administrative Court. 
By an appeal lodged on 14 June 2017 with the secretariat of the judicial section of 
the Council of State, the ministre de l’agriculture et de l’alimentation (Minister of 
Agriculture and Food) applied to the Conseil d’État (Council of State) for the 
annulment of the judgment of the Administrative Court of Appeal. 
The Minister claimed that the Administrative Court of Appeal: 
- failed to respond to the plea alleging an irregularity in the judgment of the 
Administrative Court which had omitted to rule on the admissibility of the 
application; [Or. 2]  
- made an error of law in finding that the exemptions from employees’ 
contributions had not benefited fishing undertakings and fish farmers despite the 
fact that they had been classified as State aid by the European Commission; 
- distorted the evidence before it in finding that it was apparent from the file that 
the reduction in employees’ contributions had automatically had the effect of 
increasing the amount of net salary paid to employees. 
By a defence, lodged on 13 March 2018, Compagnie des pêches de Saint-Malo 
contended that the appeal should be dismissed and that the State be ordered to pay 
the sum of EUR 3 000 under Article L. 761-1 of the code de justice administrative 
(Code of Administrative Justice). It argued that the pleas raised by the Minister 
were unfounded. 
[…] [Or. 3]  
1 It is apparent from the documents in the file submitted to the trial courts that, by 
Decision No 2005/239/EC of 14 July 2004, the European Commission declared 
the aid implemented by France in the form of reductions in social security 
contributions for fishermen between 15 April and 15 October 2000, to remedy the 
damage caused by the wreck of the tanker Erika on 12 December 1999 and by the 
storm of 27 and 28 December 1999, incompatible with the common market. The 
Commission ordered the immediate and effective recovery of the aid. By a 
judgment of 20 October 2011, Commission v France (C-549/09), the Court of 
MINISTRE DE L’AGRICULTURE ET DE L’ALIMENTATION 
 
3 
Justice of the European Union held that France had failed to fulfil its obligations 
by failing to recover from the beneficiaries the aid declared unlawful and 
incompatible with the common market by the decision of 14 July 2004. An order 
for payment was issued on 22 February 2013 against Compagnie des pêches de 
Saint-Malo for an amount corresponding to the reductions in employees’ 
contributions between 15 April and 15 July 2000, together with interest for late 
payment. By a judgment of 25 June 2015, the Administrative Court, Rennes 
annulled the order for payment. By a judgment of 14 April 2017, the 
Administrative Court of Appeal, Nantes dismissed the appeal brought by the 
Minister for the Environment, Energy and the Sea against the judgment of the 
Administrative Court. The Minister of Agriculture and Food appealed on a point 
of law against that judgment of the Administrative Court of Appeal. 
2 The Administrative Court of Appeal omitted to rule on the Minister’s claim for 
the judgment of the Administrative Court to be annulled on the grounds that the 
Administrative Court had not ruled on the plea that the complaint made by 
Compagnie des pêches de Saint-Malo was out of time and therefore inadmissible. 
This ground being sufficient to entail the annulment of the judgment under appeal, 
it is not necessary to examine the other grounds of appeal. 
3 In the circumstances, it is appropriate to deal with the substance of the case 
pursuant to the provisions of Article L. 821-2 of the Code of Administrative 
Justice. 
4 Before the Administrative Court, the Minister had raised a plea that the 
application made by Compagnie des pêches de Saint-Malo was inadmissible due 
to its complaint being made out of time. The Administrative Court, which upheld 
the company’s claim, did not rule on that plea, although the latter was not 
ineffective. Consequently, the Minister is entitled to seek the annulment of the 
judgment of the Administrative Court. 
5 It is appropriate to consider and to rule forthwith on the claim brought by 
Compagnie des pêches de Saint-Malo before the Administrative Court. 
The plea of inadmissibility raised by the Minister: 
6 Under Article 118 of the décret du 7 novembre 2012 relatif à la gestion budgétaire 
et comptable publique (Decree of 7 November 2012 on budgetary management 
and public accounting), in the version applicable to these proceedings: ‘Prior to 
bringing proceedings before a court, the party liable for payment must submit a 
complaint supported by all relevant evidence to the accountant responsible for 
collection of the recovery order. / The complaint shall be void unless it is lodged:/ 
(1) in the case of a challenge to the enforcement of an order for payment, within 
two months following notification of that order or two months following the first 
act of proceedings prior to the order for payment in question …’. It is for the 
administration, when raising a plea of inadmissibility based on the lateness of a 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-212/19 
 
4  
claim before an administrative court [Or. 4], to establish the date on which the 
contested decision was duly notified to the person concerned. 
7 It appears from the file that, although the company stated in the complaint it 
submitted on 5 June 2013 to the directeur départemental des finances publiques 
d’Ille-et-Vilaine (Director of Public Finances for Ille-et-Vilaine) that it had 
received the relevant order for payment on 18 March 2013, it then submitted in its 
pleadings before the Administrative Court and the Administrative Court of Appeal 
that the reference to 18 March was the result of a clerical error. As the 
administration has not provided any evidence of the date of notification of the 
order for payment, the lateness of the complaint cannot be regarded as established. 
The plea of inadmissibility based on the expiry of the time-limit laid down in 
Article 118 of the Decree of 7 November 2012 must, therefore, be rejected. 
Lawfulness of the order for payment: 
8 In the first place, the plea alleging that the order for payment did not comply with 
the requirement to state reasons under national law was explicitly abandoned by 
the company in its reply before the Administrative Court. The plea contained in its 
defence before the Council of State alleging that the order for payment infringed 
the requirement to state reasons under EU law did not include specific details 
enabling the scope of the EU provisions allegedly infringed to be assessed. 
9 In the second place, it is settled case law of the Court of Justice of the European 
Union that the recipient of State aid paid in breach of Article 107 of the Treaty on 
the Functioning of the European Union cannot effectively rely on the principles of 
protection of legitimate expectations and legal certainty in order to oppose 
repayment of the aid. The plea that the order for payment infringed those 
principles must, therefore, be rejected. Similarly, delay on the part of the State to 
recover the aid at issue cannot invalidate the order for payment. 
10 In the third place, according to Article 263 of the Treaty on the Functioning of the 
European Union: ‘The Court of Justice of the European Union shall review the 
legality of legislative acts, of acts of the Council, of the Commission and of the 
European Central Bank, other than recommendations and opinions, and of acts of 
the European Parliament and of the European Council intended to produce legal 
effects vis-à-vis third parties. It shall also review the legality of acts of bodies, 
offices or agencies of the Union intended to produce legal effects vis-à-vis third 
parties. / ... Any natural or legal person may, under the conditions laid down in 
the first and second paragraphs, institute proceedings against an act addressed to 
that person or which is of direct and individual concern to them, and against a 
regulatory act which is of direct concern to them and does not entail 
implementing measures. / ... The proceedings provided for in this Article shall be 
instituted within two months of the publication of the measure, its notification to 
the plaintiff or, in the absence thereof, of the day on which it came to the 
knowledge of the latter …’. According to the judgment of the Court of Justice of 
MINISTRE DE L’AGRICULTURE ET DE L’ALIMENTATION 
 
5 
the European Communities of 9 March 1994 in TWD Textilwerke Deggendorf 
GmbH v Federal Republic of Germany (C-188/92), as a result of the requirement 
for legal certainty, it is not possible for a recipient of aid, forming the subject-
matter of a Commission decision adopted on the basis of Article 93 of the Treaty 
establishing the European Economic Community (subsequently Article 88 of the 
Treaty establishing the European Community and then Article 108 of the Treaty 
on the Functioning of the European Union), who could have challenged that 
decision and who allowed the mandatory time-limit laid down in this regard by 
the third paragraph of Article 173 of the Treaty establishing the European 
Economic Community (subsequently Article 130 of the Treaty establishing the 
European Community and then Article 263 of the Treaty on the Functioning of the 
European Union), to expire, to call in question the lawfulness of that decision 
before the national courts in an action brought against the measures taken by the 
national authorities for implementing that decision. Moreover, according to the 
judgment in Italy and Sardegna Lines v Commission of 19 October 2000 (C-15/98 
and C-105/99) and the judgment of 25 July 2018 in Georgsmarienhütte and 
Others (C-135/16), the actual beneficiaries of individual aid, granted under an aid 
scheme, of which the Commission has ordered the recovery are, accordingly, 
individually concerned within the meaning of the fourth paragraph of Article 263 
of the Treaty on the Functioning of the European Union. 
11 It is common ground that Compagnie des pêches de Saint-Malo, which contests 
the validity of the Commission decision of 14 July 2004, published in the Official 
Journal of the European Union on 19 March 2005, failed to bring an action for 
annulment of that act under Article 130 of the Treaty establishing the European 
Community, then applicable, before expiry of the mandatory time-limit for 
bringing proceedings provided for in that article, even though that decision 
declared the reduction in social security contributions granted to fishermen 
incompatible with the common market and the company had beyond a doubt the 
standing to contest that decision since it was entitled to infer that it was directly 
and individually concerned by it, within the meaning of Article 130 cited above, 
as regards both the employer’s and the employees’ contributions. Accordingly, it 
cannot challenge its validity in contentious proceedings directed against the 
measures implementing that decision taken by national authorities. The request for 
a question concerning the validity of the Commission decision of 14 July 2004 to 
be referred to the Court of Justice of the European Union for a preliminary ruling 
pursuant to Article 267 of the Treaty must, therefore, be rejected. 
12 In the fourth place, the company maintains that the Commission’s decision relates 
only to the recovery of reductions in employers’ contributions and that the 
reductions in employees’ contributions must be recovered from the employees, 
who were the sole beneficiaries thereof. 
13 According to Article 107 of the Treaty on the Functioning of the European Union:  
‘1. Save as otherwise provided in the Treaties, any aid granted by a Member State 
or through State resources in any form whatsoever which distorts or threatens to 
REQUEST FOR A PRELIMINARY RULING OF 15. 2. 2019 — CASE C-212/19 
 
6  
distort competition by favouring certain undertakings or the production of certain 
goods shall ... be incompatible with the internal market /...’. It follows from the 
settled case-law of the Court of Justice of the European Union that, although every 
entity engaged in an economic activity, regardless of the legal status of the entity 
and the way in which it is financed, must be regarded as an undertaking within the 
meaning of those provisions, the provisions do not apply to public interventions 
directly benefiting natural persons taken as individuals, since those interventions 
do not indirectly favour certain undertakings or the production of certain goods. 
14 The Commission decision of 14 July 2004 states, in paragraph 18 concerning the 
description of the national measures, that the reduction applied to employers’ and 
employees’ contributions. However, in the remainder of the decision, the 
Commission refers only to ‘social security contributions’, without specifying 
whether the reduction in contributions of which it ordered the recovery included 
employees’ contributions. In its judgment of 20 October 2011, Commission v 
France (C-549/09) [Or. 6], the Court of Justice of the European Union indicated 
that, in the infringement action before it, it was not for the Court to rule in which 
situations and from which operators the aid had to be recovered and that the Court 
was unable, having regard to the subject-matter of the dispute and the information 
available to it, to determine who from the undertaking or among the employees 
had retained the actual benefit of the aid. 
15 Under Article L. 741-9 of the code rural et de la pêche maritime (Rural and 
Maritime Fishing Code) and Article 4 of the décret du 17 juin 1938 relatif à la 
réorganisation et à l’unification du régime d’assurance des marins (Decree of 
17 June 1938 relating to the reorganisation and consolidation of the insurance 
scheme for mariners), employers’ contributions to the agricultural workers’ 
scheme and the mariners’ scheme are payable by employers, while employee 
contributions are payable by employees. Employees’ contributions are not borne 
by the employer but are only deducted by him from the earnings of the insured 
persons every pay-day and reductions in employees’ contributions are passed on 
to employees who receive a higher net wage and are the direct beneficiaries 
thereof. 
16 However, this reduction in employees’ contributions could be regarded as having 
constituted an indirect advantage to the undertaking since, during the relevant 
period, it gained a certain attractiveness through the higher salaries received by its 
employees for six months. 
17 The response to the plea alleging that the Commission decision does not require 
the recovery of reductions in employees’ contributions from undertakings 
depends, first, on whether the Commission decision should be interpreted as 
declaring that only the reductions in employers’ contributions are incompatible 
with the common market, while the reductions in employees’ contributions do not 
directly benefit undertakings and therefore cannot fall within the scope of 
Article 107 of the Treaty, or as also declaring the reductions in employees’ 
contributions to be incompatible. In the event that the Commission decision 
MINISTRE DE L’AGRICULTURE ET DE L’ALIMENTATION 
 
7 
should be interpreted as also declaring the reductions in employees’ contributions 
to be incompatible, the response to the plea depends on whether the undertaking 
should be regarded as having received the full amount of those reductions or only 
a part of them and, in the latter case, how that part should be evaluated and 
whether the Member State is required to order recovery from the employees 
concerned of the part of the aid from which they benefited. 
18 These issues, which arise in other files submitted to the Council of State, raise a 
serious difficulty of interpretation which must be referred to the Court of Justice 
of the European Union. 
RULES: 
Article 1: The judgment of 14 April 2017 of the Administrative Court of Appeal, 
Nantes is annulled. 
Article 2: The judgment of 25 June 2015 of the Administrative Court, Rennes is 
annulled. [Or. 7]  
Article 3: The proceedings relating to the application brought by Compagnie des 
pêches de Saint-Malo are stayed pending a preliminary ruling of the Court of 
Justice of the European Union on the following questions: 
1. Must the Commission’s decision of 14 July 2004 be interpreted as declaring 
that only the reductions in employers’ contributions are incompatible with the 
common market, on the ground that the reduction in employees’ contributions do 
not benefit the undertakings and therefore cannot fall within the scope of 
Article 107 of the Treaty on the Functioning of the European Union, or as also 
declaring the reductions in employees’ contributions to be incompatible?  
2. In the event that the Court finds that the Commission’s decision is to be 
interpreted as also declaring the reductions in employees’ contributions to be 
incompatible, must the undertaking be regarded as having received the full 
amount of those reductions or only a part thereof? In the latter case, how is that 
part to be assessed? Is the Member State required to order recovery from the 
employees concerned of the part of the aid from which they benefited? 
[…] [Or. 8]  
[…]