Judgment — ECLI:EU:C:2011:250
Date: 2011-04-14
Language of the case: Polish
Court formation: First Chamber
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Poland

Summary of the Judgment 1. Actions for failure to fulfil obligations – Failure to comply with a Commission decision concerning State aid – Duty to recover the aid granted – Reference period (Art. 88(2), second para., EC) 2. State aid – Recovery of unlawful aid – Application of national law – Conditions and limits (Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3)) 3. Actions for failure to fulfil obligations – Failure to fulfil the obligation of recovering unlawful aid – Defences – Fulfilment absolutely impossible – Criteria for assessment – Difficulties in fulfilling obligation (Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(3)) 1. The relevant date for the assessment of an action for failure to fulfil obligations brought pursuant to the second paragraph of Article 88(2) EC is that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission. However, in order to establish the date on which the period prescribed for fulfilment of the obligation expired, any suspension of the operation of the Commission’s decision ordered by the President of the General Court must be taken into account. (see paras 50, 52) 2. In accordance with Article 14(3) of Regulation No 659/1999 on the application of Article 88 of the EC Treaty, recovery of unlawful aid imposed by a Commission decision is to be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission decision. In the case of bankrupt undertakings that have received aid declared incompatible with the common market, restoration of the previous situation and elimination of the distortion of competition arising from the unlawfully paid aid may, in principle, be achieved by registration of the liability relating to the repayment of the aid in question in the schedule of liabilities. (see paras 59-60) 3. In an action for failure to fulfil obligations brought by the Commission on the basis of Article 88(2) EC, the only defence that a Member State may rely on is to plead that it was absolutely impossible to give proper effect to the decision to recover. The condition that it should be absolutely impossible to give effect to such a decision is not met when the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in carrying out the decision, but does not take any real steps to recover the aid from the undertakings concerned, or propose to the Commission any alternative arrangements for carrying out the decision which could have enabled those difficulties to be overcome. In addition, fear of internal difficulties in connection with giving effect to a decision on State aid cannot justify failure by a Member State to fulfil its obligations under Union law. (see paras 69-70, 72)