Keywords

Summary



Keywords

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

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)

Summary

1. Since illegal aid must, in principle, be recovered in accordance with the relevant 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 identified as such by the Commission and other interested parties, and be unconditional 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 proceedings 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 Commission'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.

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 implementation 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 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 to implement the decision properly.

see para. 70