Opinion of the Advocate General — ECLI:EU:C:2005:77
Date: 2005-02-01
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

Summary of the Judgment 1. Actions for failure to fulfil obligations — Failure to comply with the obligation to recover aid granted — Grounds of defence — Absolute impossibility of implementation — Assessment criteria — Difficulties in implementation — Obligation on the Commission and the Member State to cooperate in seeking a solution consistent with the Treaty (Arts 10 EC and 88(2) EC) 2. Actions for failure to fulfil obligations — Failure to comply with a Commission decision relating to State aid — Grounds of defence — Plea questioning the lawfulness of the decision — Inadmissible 3. State aid — Commission decision finding aid to be incompatible with the common market and ordering it to be repaid — Commission’s power to leave the calculation of the exact amount to be repaid to the national authorities 1. 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 of the aid in question. The condition that it be absolutely impossible to implement a decision is not fulfilled, as regards a Commission decision relating to State aid, 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 which could have enabled those difficulties to be overcome. Where the implementation of such a decision encounters only a certain number of national difficulties, the Commission and the Member State concerned must respect the principle underlying Article 10 EC, which imposes a duty of genuine cooperation on the Member States and the Community 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 State aid. (see paras 35, 42-43) 2. In the context of an action which concerns the failure to implement a decision on State aid which has not been referred to the Court by the Member State to which it is addressed, the latter is not justified in challenging the lawfulness of such a decision. (see para. 38) 3. No provision of Community law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient to work out himself, without overmuch difficulty, that amount. The Commission can therefore legitimately 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 amounts to be repaid. Furthermore, as the operative part of a decision on State aid is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption, the amounts to be repaid pursuant to the Commission’s decision can be established by reading the grounds thereof. (see paras 39-41)