EN Official Journal of the European Union C 312/10

Action brought on 17 August 2009 — Commission of the European Communities v Republic of Poland

(Case C-331/09)

2009/C 312/17

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: K. Gross and A. Stobiecka-Kuik, Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by its failure to comply with the obligations resulting from the Commission Decision of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for the steel producer Technologie Buczek Group (notified under document number C(2007) 5087), published in OJ 2008 L 116, p. 26, and in any event by not informing the Commission of compliance with those obligations, the Republic of Poland has acted in breach of the fourth paragraph of Article 249 EC and of Articles 3, 4 and 5 of the abovementioned decision;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission adopted, on 23 October 2007, a decision ordering recovery of aid from the Polish steel producer Technologie Buczek Group, in particular from Technologie Buczek SA (‘TB’) and its subsidiaries Huta Buczek (‘HB’) and Buczek Automotive (‘BA’), which implemented in an unlawful manner a previously approved restructuring plan and subsequently received unlawful operating aid. That operating aid took the form of exemption from public-law liabilities. The Republic of Poland was notified of the decision on 24 October 2007 by way of its Permanent Representative to the European Union. At the same time the Commission called on the Republic of Poland to take all measures necessary to ensure recovery of the aid which had been unlawfully granted.

By the date on which the action was brought, the aid granted to HB and BA had not yet been repaid.

According to the Polish authorities, apart from obstacles of a purely technical nature, the reason for the significant delay in recovering the aid lies in the provisions of the Polish law on insolvency. The Polish authorities explained that the State aid referred to in the decision took the form of exemption for TB from its liabilities, even though its subsidiaries were the actual beneficiaries of the aid. In that situation TB was formally accountable for all liabilities, including the amounts to be recovered from HB and BA. The provisions of Polish law allegedly make it impossible for such claims to be written off, with the exception of cases involving ‘complete impossibility’. In addition, if these claims are submitted, the official receiver dealing with the insolvency of TB is obliged to pay out the amounts owing, which may include the amounts to be recovered from the subsidiaries. Furthermore, if those amounts are recovered there will no longer be any legal basis on which recovery of those same amounts may be sought from HB and BA.

The Commission, however, takes the view that it is not sufficient that the Republic of Poland availed itself of all measures open to it. The application of those measures must result in the effective and immediate implementation of the decision, as otherwise it will be necessary to assume that the Republic of Poland has not complied with its obligations. Breach of the obligation on a Member State to recover arises when the steps taken by that Member State have had no influence on the actual recovery of a particular amount.