Judgment of the Court (Ninth Chamber) of 5 June 2014 — Commission v Italy

(Case C‑547/11)

‛Failure of a Member State to fulfil obligations — State aid — Decisions 2006/323/EC and 2007/375/EC — Exemption from excise duty on mineral oils used as fuel for alumina production in Sardinia — Recovery — Decisions to suspend the enforcement of a demand for payment taken by a national court’

1. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Duty to recover the aid granted — Time-limit for recovery (Art. 249 EC; Art. 108(2) TFEU) (see paras 49, 50)

2. Actions for failure to fulfil obligations — Failure to fulfil the obligation to recover unlawful aid — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Burden of proof on the Member State — Plea based on the adoption of decisions to suspend the enforcement of a demand for payment taken by a national court allegedly after the deadline for recovery — Not included (Art. 108(2) TFEU) (see paras 55-62)

3. Judicial proceedings — Application initiating proceedings — Statement of subject-matter and pleas in law — Determination as to whether a complaint is of a primary or subsidiary nature (Art. 108(2) TFEU) (see para. 65)

4. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Duty to recover the aid granted — Reference period — Time-limit fixed in the decision with which there was no compliance or subsequently by the Commission (Art. 108(2) second para., TFEU) (see para. 68)

5. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Failure to comply with the decision — Failure to inform the Commission about implementing measures (Art. 108(2) TFEU) (see paras 69-71)

Re:

Failure of a Member State to fulfil obligations — State aid — Failure to adopt, within the prescribed period, all the measures necessary to comply with Articles 5 and 6 of Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006, L 119, p. 12) and Articles 4 and 6 of Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (OJ L 2007 L 147, p. 29) — Infringement of Article 288 TFEU and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) — Requirement of immediate and effective enforcement of the Commission’s decisions — Inadequacy of the procedures for the recovery of the unlawful aid.

Operative part

The Court:

1. Declares that by failing to adopt, within the prescribed period, all measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy and Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively [C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)], the Italian Republic has failed to fulfil its obligations under Articles 5 of Decision 2006/323, Article 4 of Decision 2007/375 and the fourth paragraph of Article 249 EC;

2. By failing to communicate, within the prescribed period, the information referred to in Article 6(1) of Decision 2006/323 and Article 6(2) of Decision 2007/375, the Italian Republic has failed to fulfil its obligations under both those provisions and the fourth paragraph of Article 249 EC;

3. Orders the Italian Republic to pay the costs.

Judgment of the Court (Ninth Chamber) of 5 June 2014 — Commission v Italy

(Case C‑547/11)

‛Failure of a Member State to fulfil obligations — State aid — Decisions 2006/323/EC and 2007/375/EC — Exemption from excise duty on mineral oils used as fuel for alumina production in Sardinia — Recovery — Decisions to suspend the enforcement of a demand for payment taken by a national court’

1. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Duty to recover the aid granted — Time-limit for recovery (Art. 249 EC; Art. 108(2) TFEU) (see paras 49, 50)

2. Actions for failure to fulfil obligations — Failure to fulfil the obligation to recover unlawful aid — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Burden of proof on the Member State — Plea based on the adoption of decisions to suspend the enforcement of a demand for payment taken by a national court allegedly after the deadline for recovery — Not included (Art. 108(2) TFEU) (see paras 55-62)

3. Judicial proceedings — Application initiating proceedings — Statement of subject-matter and pleas in law — Determination as to whether a complaint is of a primary or subsidiary nature (Art. 108(2) TFEU) (see para. 65)

4. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Duty to recover the aid granted — Reference period — Time-limit fixed in the decision with which there was no compliance or subsequently by the Commission (Art. 108(2) second para., TFEU) (see para. 68)

5. Actions for failure to fulfil obligations — Non-compliance with a Commission decision concerning State aid — Failure to comply with the decision — Failure to inform the Commission about implementing measures (Art. 108(2) TFEU) (see paras 69-71)

Re:

Failure of a Member State to fulfil obligations — State aid — Failure to adopt, within the prescribed period, all the measures necessary to comply with Articles 5 and 6 of Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006, L 119, p. 12) and Articles 4 and 6 of Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (OJ L 2007 L 147, p. 29) — Infringement of Article 288 TFEU and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) — Requirement of immediate and effective enforcement of the Commission’s decisions — Inadequacy of the procedures for the recovery of the unlawful aid.

Operative part

The Court:

1. Declares that by failing to adopt, within the prescribed period, all measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy and Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively [C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)], the Italian Republic has failed to fulfil its obligations under Articles 5 of Decision 2006/323, Article 4 of Decision 2007/375 and the fourth paragraph of Article 249 EC;

2. By failing to communicate, within the prescribed period, the information referred to in Article 6(1) of Decision 2006/323 and Article 6(2) of Decision 2007/375, the Italian Republic has failed to fulfil its obligations under both those provisions and the fourth paragraph of Article 249 EC;