Opinion of the Advocate General — ECLI:EU:C:2001:479
Date: 2001-09-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 
1. State aid — Recovery of unlawful aid — Application of national law — Suitability 
of measure adopted for producing the same effect on the conditions of competition as 
repayment 
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SUMMARY — CASE C-209/00 
2. Actions for failure to fulfil obligations — Proof of failure — Burden of proof borne 
by the Commission — Failure to fulfil obligation to recover illegal aid — Recovery 
allegedly effected by means other than cash payment — Duty of Member State to 
provide information 
(Arts 88(2) EC and 226 EC) 
3. Actions for failure to fulfil obligations — Non-compliance with a Commission 
decision concerning State aid — Pleas in defence — Absolute impossibility of 
implementation 
(Art. 88(2) EC) 
1. Since illegal aid must, in principle, be 
recovered in accordance with the rel­
evant procedural provisions of national 
law, the Member State concerned is 
free to choose the means of fulfilling 
that obligation, provided that the 
measures chosen do not adversely 
affect the scope and effectiveness of 
Community law and, where they do 
not take the form of repayment by way 
of a transfer of funds, have the same 
effect as such repayment. 
Thus, any measure adopted in order to 
fulfil such an obligation must be a 
suitable instrument for re-establishing 
the conditions of competition which 
have been distorted by the grant of that 
illegal aid, be capable of being ident­
ified as such by the Commission and 
other interested parties, and be uncon­
ditional and immediately applicable. 
That is not so in the case of a measure 
which relates to an uncertain future 
event and is of a precarious character. 
(see paras 32, 34-35, 57-62) 
2. Where the Commission brings proceed­
ings for failure to fulfil obligations — 
either under Article 226 EC or under 
Article 88(2) EC, the latter action 
being simply a variant of the procedure 
for a failure to comply with obligations 
which has been adapted to the specific 
problems affecting competition in the 
common market which have been 
caused by the maintenance of State 
aid which has been declared illegal — 
against a Member State which it claims 
has failed to recover illegal aid, it is 
incumbent upon the Commission to 
prove the allegation that the obligation 
has not been fulfilled. It is the Com­
mission's responsibility to provide the 
Court with the evidence necessary to 
enable it to establish that the obligation 
has not been fulfilled and, in so doing, 
the Commission may not rely on any 
presumption. 
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COMMISSION v GERMANY 
However, where a Member State 
recovers that aid by means other than 
a cash payment, it must ensure that the 
measures are sufficiently transparent 
and provide the Commission with all 
the information enabling it to establish 
that they constitute an adapted imple­
mentation of the decision in order that 
the Commission may satisfy itself that 
they are suitable for the purpose of 
eliminating, in full compliance with 
Community law, the distortion of 
competition caused by that aid. 
(see paras 37-38, 40, 43-44) 
3. The only defence available to a 
Member State in opposing an appli­
cation by the Commission under 
Article 88(2) EC for a declaration that 
it has failed to fulfil its Treaty obli­
gations is to plead that it was abso­
lutely impossible for it to implement 
the decision properly. 
(see para. 70) 
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