Opinion of the Advocate General — ECLI:EU:C:1997:323
Date: 1997-06-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment
Actions for failure to fulfil obligations — Non-compliance with a Commission decision concern­
ing State aid — Decision not challenged by way of an action for annulment — Defences —
Absolutely impossible to implement — Criteria of assessment
(EC Treaty, Art. 93(2))
Where an application for a declaration of
failure to fulfil obligations is brought in
respect of a Member State which is the
addressee of a decision adopted under
Article 93(2) of the Treaty ordering that State
to recover illicit aid, and where no action has
been instituted for the annulment of that
decision, the only defence available to the
Member State in opposing the application is
to plead that it was absolutely impossible for
it to implement the decision properly.
However, that condition is not satisfied
where the government of the Member State
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SUMMARY — CASE C-280/95
merely informs the Commission of the legal
and practical difficulties involved in imple­
menting the decision, without taking any
step whatsoever to recover the aid from the
undertakings in question, and without pro­
posing to the Commission any alternative
arrangements for implementing the decision
which would have enabled the alleged diffi­
culties to be overcome.
Moreover, although insuperable difficulties
may prevent a Member State from comply­
ing with its obligations under Community
law, mere apprehension of such difficulties
cannot justify a failure by a Member State to
apply Community law correctly.
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