Opinion of the Advocate General — ECLI:EU:C:2010:507
Date: 2010-09-09
Language of the case: Slovak
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: Slovakia

Summary 59. It is apparent from all of the foregoing that, although the Slovak Republic has undertaken a number of legislative reforms which, viewed in the round, will in future enable proper implementation of the Commission’s decisions in cases like this, in the circumstances of the instant case and for the reasons set out above, the Slovak Republic has failed to fulfil its obligation to give effect to the Commission Decision of 7 June 2006. VI – Conclusion 60. In the light of the considerations set out above, I propose that the Court should: (1) Declare that, by failing to execute the Commission Decision of 7 June 2006 on State aid C 25/05 (ex NN 21/05) implemented by the Slovak Republic for FRUCONA Košice, a.s., the Slovak Republic has failed to fulfil its obligations under Article 288(4) TFEU and Article 2 of that decision. (2) Order the Slovak Republic to pay the costs. 1 Original language: Spanish. 2 – Notified under number C (2006) 2082, and published in OJ 2007 L 112, p. 14. 3 – Supreme Court of the Slovak Republic in civil matters. 4 – Case C-142/87 [1990] ECR I-959. 5 – Case C-305/89 [1991] ECR I-1603. 6 – Case C-232/05 [2006] ECR I-10071. 7 – Case C-404/00 [2003] ECR I-6695. 8 – Case C-415/03 [2005] ECR I-3875. 9 – Case C-5/89 [1990] ECR I-3437. 10 – Case 77/72 [1973] ECR 611. 11 – Case 78/76 [1977] ECR 595. 12 – Case C-24/95 [1997] ECR I-01595. 13 – Case C-119/05 [2007] ECR I-6199. 14 – Case C-453/00 [2004] ECR I-837. 15 – Case C-234/04 [2006] ECR I-2585. 16 – Case 205/82 [1983] ECR 2633. 17 – OJ 1999 L 83, p. 1. 18 – The Court has repeatedly stated that the Member State concerned may not rely on the unlawfulness of a decision as a defence against an action for failure to fulfil obligations based on the failure to execute that decision (see, inter alia, Case C‑196/07 Commission v Spain [2008] ECR I-0041, paragraph 34), unless the defects concerned are so serious that the decision could be deemed a non-existent measure (Case 226/87 Commission v Greece [1988] ECR I‑3611, paragraph 16). 19 – Although, as the Commission has asserted in its reply (paragraph 10), there is no doubt if the versions of the decision in the other languages are taken into account. Thus, for example, in English: ‘to recover the aid’; in French: ‘récupérer l´aide’; in German: ‘Beihilfe zurückzufordern’; it is in that multi-lingual context that the provisions of the decision must be construed (see, inter alia, Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 15). 20 – In a long process beginning with such exemplary rulings as the one in Case 6/64 Costa v Enel [1964] ECR 1141 and Case 106/77 Simmenthal [1978] ECR 629. Since then, in the event of a conflict, it has been held that European Union law takes precedence over the law of the Member States, which may not even invoke their highest-ranking provisions. 21 – Case C-224/01 [2003] ECR I-10239. 22 – Case C-129/00 [2003] ECR I-14637. 23 – Case C-154/08 [2009] ECR I-0000. 24 – Case C-2/08 [2009] ECR I-0000. 25 – Case C-126/97 [1999] ECR I-3055. 26 – Case C-173/03 [2006] ECR I-5177. 27 – Case C-2/06 [2008] ECR I-411. 28 – Many academic writers took the same view; for example, Germelmann, C.F., EWS, 9/2007, p. 392; Kremer, C., EuZW, 23/2007, p. 726. Further, the dominant view is that, rather than breaking with its previous case-law in that judgment, the Court elaborated on the reasoning behind its traditional statement of the law; for example, Peroni, G., Diritto del commercio internazionale, 22.1, 2008, p. 221; Biondi, A., Common Market Law Review, 2008, p. 1459; Fontana, E., Diritto del commercio internazionale, 22.1, 2008, p. 193.