Judgment — ECLI:EU:C:2011:274
Date: 2011-05-05
Language of the case: Italian
Court formation: First Chamber
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 1. State aid – Recovery of unlawful aid – Obligation – Duty to comply immediately and effectively with the Commission’s decision (Arts 88(2) EC and 249 EC) 2. Actions for failure to fulfil obligations – Failure to fulfil the obligation to recover unlawful aid – Defences – Absolutely impossible to give effect (Arts 10 EC, 88(2) EC and 249 EC) 3. State aid – Recovery of unlawful aid – Application of national law – Conditions and limits – Duties of the national courts (Council Regulation No 659/1999, Art. 14(3)) 1. The Member State to which a decision requiring recovery of unlawful aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure that the decision is given effect and must actually recover the sums owed. Recovery out of time, after the prescribed period, or legislative steps intended to ensure the enforcement by national courts of a Commission decision requiring a Member State to recover unlawful aid which are taken too late or prove ineffective cannot satisfy the requirements of the Treaty. The fact that, after expiry of all the periods fixed by the Commission, part of the unlawful aid had still not been recovered by the Member State is clearly irreconcilable with the obligation of the Member State actually to recover the sums owed and constitutes a breach of the duty to comply, immediately and effectively, with the Commission’s decision. That finding is not affected by the fact that about 90% of the capital of the unlawful aid had been recovered by the day of the hearing before the Court of Justice in the present case. (see paras 26-27, 29-30, 40) 2. In infringement proceedings brought by the Commission under Article 88(2) EC, the only defence available to a Member State is to plead that it was absolutely impossible for it to give proper effect to the decision at issue. The condition that it be absolutely impossible to give effect to a decision is not fulfilled when the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in giving effect to the decision, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for giving effect to the decision of such a kind as to enable those difficulties to be overcome. In particular, the fact that the Member State in question considers it necessary to verify the individual situation of each company concerned, to conduct a screening to identify persons in receipt of benefits covered by the Commission’s decision, cannot justify failure to give effect to that decision. A Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision at issue. In such a case, the Member State and the Commission must, in accordance with the rule imposing on the Member States and on the Union institutions mutual duties of genuine cooperation, which is the basis of, in particular, Article 10 EC, work together in good faith with a view to overcoming difficulties while fully observing the Treaty provisions and, in particular, the provisions on State aid. (see paras 32-34, 37) 3. Although the review by a national court of the formal legality of a national measure seeking the recovery of unlawful State aid must be viewed simply as giving concrete expression to the general principle of Union law of effective judicial protection, national courts are required, under Article 14(3) of Regulation No 659/1999 on the application of Article 88 EC, to ensure that the decision ordering the recovery of the unlawful aid is fully effective and achieves an outcome consistent with the objective pursued by that decision. In fact, annulment of a national measure giving effect to a Commission decision ordering recovery of unlawful aid, which impedes immediate and effective compliance with that decision, is irreconcilable with the requirements arising from Article 14(3) of that regulation. (see paras 46-47)