Judgment — ECLI:EU:C:2007:538
Date: 2007-09-20
Language of the case: Spanish
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Defences;Procedure under Article 88 EC
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 1. Actions for failure to fulfil obligations – Non-compliance with a Commission decision concerning State aid – Defences (Arts 88(2) second subpara., EC, 226 EC, 227 EC, 230 EC and 232 EC) 2. Actions for failure to fulfil obligations – Non-compliance with a Commission decision concerning State aid – Defences (Art. 88(2) EC) 3. Actions for failure to fulfil obligations – Non-compliance with a Commission decision concerning State aid – Non-implementation of the decision (Art. 88(2) EC) 1. The system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 226 EC and 227 EC, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 230 EC and 232 EC, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision. The position could be different only if the measure in question contained such particularly serious and manifest defects that it could be deemed non-existent. That also applies in an action for failure to fulfil obligations based on the second subparagraph of Article 88(2) EC. In an action for failure to fulfil obligations brought under the second subparagraph of Article 88(2) EC, and except for the case of the non-existence of the act, a Member State is not entitled to raise the defence of the unlawfulness of a negative decision of the Commission when a direct action against that decision is pending before the Community Courts. (see paras 30-32, 37) 2. 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. (see para. 46) 3. In an action for failure to fulfil obligations brought by the Commission under Article 88(2) EC, the Court does not need to examine the form of order sought against a Member State for failing to notify the Commission of the measures implementing a decision declaring a system of aid incompatible with the common market and requiring it to be withdrawn, with suspension of aid not yet paid and recovery of aid already paid, where that Member State did not in fact implement the decision within the prescribed period. (see paras 53-54)