Opinion of the Advocate General — ECLI:EU:C:2014:90
Date: 2014-02-13
Language of the case: German
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 11 September 2014 1. State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Obligations of the Member States — Obligation to recover — Scope — Restoration of the situation which existed previously (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14(1)) 2. State aid — Recovery of unlawful aid — Application of national law — Conditions — Implementation of a procedure for the immediate and effective enforcement of the Commission’s decision — Assessment by reference to the circumstances of the case (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14(1)) 3. Actions for failure to fulfil obligations — Failure to comply with the obligation to recover unlawful aid — Defences — Absolutely impossible to implement the decision — Criteria for assessment — Difficulties in implementing — Duty of the Commission and of the Member State to collaborate in seeking a solution compatible with the Treaty (Art. 4(3) TEU; Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14(3)) 1. See the text of the decision. (see paras 37, 42) 2. EU law does not require the recovery of unlawful aid from the beneficiary by the national authority to be effected on the basis of the Commission’s recovery decision alone. The Member State concerned is free to choose the means of fulfilling its obligation to recover aid found to be incompatible with the internal market, provided that the measures chosen do not adversely affect the scope and effectiveness of EU law. Accordingly, the freedom of the Member States with regard to the choice of method of recovery of such aid is limited in so far as those rules and procedures cannot have the effect of making the recovery required by EU law practically impossible. The application of national procedures is subject to the condition that those procedures allow the immediate and effective execution of the Commission’s decision, a condition which reflects the requirements of the principle of effectiveness. Consequently, the question whether the Member State concerned, by choosing those measures, has fulfilled its obligation to recover aid found to be incompatible with the internal market in accordance with the requirement of effectiveness must be assessed on a case-by-case basis, having regard to the specific circumstances of the case. (see paras 39-41, 43) 3. As for the justification for a significant delay in recovering unlawful aid, the only defence available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU is to plead that it was absolutely impossible for it to implement the decision in question. The basis of such absolute impossibility may also be a legal one, when it results from decisions adopted by the national courts, provided that those decisions comply with EU law. Accordingly, in the event that national civil law rules do not allow for the effective recovery of the aid in question, it may be necessary, in view of the circumstances of the case, for national rules to be left unapplied and to have recourse to other measures, since such measures cannot be excluded on grounds relating to national law. In that regard, Article 4(3) TEU also imposes an obligation of cooperation in good faith between the national courts, on the one hand, and the Commission and the European Union Courts, on the other, in the context of which national courts must take all the necessary measures, whether general or specific, to ensure fulfilment of the obligations under EU law and refrain from those which may jeopardise the attainment of the objectives of the Treaty. Moreover, review by the national court of an enforceable order for the recovery of unlawful aid and possible annulment of that order must be viewed simply as an expression of the principle of effective judicial protection, which is a general principle of EU law. (see paras 45, 48, 49, 55, 56)