Judgment of the Court (Ninth Chamber) of 21 March 2013 — Commission v Italy

(Case C-613/11)

‛Failure of a Member State to fulfil obligations — State aid — Aid granted by the Italian Republic to the Sardinian shipping sector — Commission Decision 2008/92/EC declaring that aid incompatible with the common market and ordering its recovery from the beneficiaries — Failure to implement within the prescribed period’

1. State aid — Recovery of unlawful aid — Application of national law — Conditions — Implementation of a procedure to ensure the immediate and effective execution of the Commission’s decision (Art. 108(2) TFEU and 288, fourth para, TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2008/92, Art. 2(2)) (see paras 32-35)

2. Actions for failure to fulfil obligations — Non-compliance with the obligation to recover aid granted unlawfully — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Obligation for the Member State to take real steps relating to the undertakings at issue and to propose alternative solutions to the Commission so as to enable it to overcome such difficulties — Obligation on the part of the Commission and the Member State, where difficulties arise regarding implementation, to collaborate in finding a solution which complies with the Treaty — Failure to adopt within the period prescribed the necessary measures to recover from the beneficiaries the aid declared unlawful — Failure to fulfil obligations (Art. 4(3) TEU; Arts 108(2), TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2008/92) (see paras 36-39, 46, operative part 1)

3. State aid — Recovery of unlawful aid — Detailed rules for recovery — Conduct of a private creditor — Obligation to use all the legal means available, including liquidation of the beneficiary (Art. 108(2) TFEU) (see paras 42, 43)

Re:

Failure of a Member State to fulfil obligations — State aid — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Articles 2 and 5 of Commission Decision 2008/92/EC of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping (OJ 2008 L 29, p. 24) — Requirement for immediate and effective enforcement of Commission decisions — Inadequacy of the recovery procedure for the unlawful aid at issue.

Operative part

The Court:

1. Declares that, by failing to take, within the prescribed period, all the measures necessary to recover from the beneficiaries the State aid considered unlawful and incompatible with the internal market by Article 1 of Commission Decision 2008/92/EC of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping, the Italian Republic has failed to fulfil its obligations under Articles 2 and 5 of that decision;

2. Orders the Italian Republic to pay the costs.

Judgment of the Court (Ninth Chamber) of 21 March 2013 — Commission v Italy

(Case C-613/11)

‛Failure of a Member State to fulfil obligations — State aid — Aid granted by the Italian Republic to the Sardinian shipping sector — Commission Decision 2008/92/EC declaring that aid incompatible with the common market and ordering its recovery from the beneficiaries — Failure to implement within the prescribed period’

1. State aid — Recovery of unlawful aid — Application of national law — Conditions — Implementation of a procedure to ensure the immediate and effective execution of the Commission’s decision (Art. 108(2) TFEU and 288, fourth para, TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2008/92, Art. 2(2)) (see paras 32-35)

2. Actions for failure to fulfil obligations — Non-compliance with the obligation to recover aid granted unlawfully — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Obligation for the Member State to take real steps relating to the undertakings at issue and to propose alternative solutions to the Commission so as to enable it to overcome such difficulties — Obligation on the part of the Commission and the Member State, where difficulties arise regarding implementation, to collaborate in finding a solution which complies with the Treaty — Failure to adopt within the period prescribed the necessary measures to recover from the beneficiaries the aid declared unlawful — Failure to fulfil obligations (Art. 4(3) TEU; Arts 108(2), TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2008/92) (see paras 36-39, 46, operative part 1)

3. State aid — Recovery of unlawful aid — Detailed rules for recovery — Conduct of a private creditor — Obligation to use all the legal means available, including liquidation of the beneficiary (Art. 108(2) TFEU) (see paras 42, 43)

Re:

Failure of a Member State to fulfil obligations — State aid — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Articles 2 and 5 of Commission Decision 2008/92/EC of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping (OJ 2008 L 29, p. 24) — Requirement for immediate and effective enforcement of Commission decisions — Inadequacy of the recovery procedure for the unlawful aid at issue.

Operative part

The Court:

1. Declares that, by failing to take, within the prescribed period, all the measures necessary to recover from the beneficiaries the State aid considered unlawful and incompatible with the internal market by Article 1 of Commission Decision 2008/92/EC of 10 July 2007 concerning an Italian State aid scheme to the Sardinian shipping, the Italian Republic has failed to fulfil its obligations under Articles 2 and 5 of that decision;