OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 30 March 2017 ( 1 )

Case C‑591/14

European Commission

v

Kingdom of Belgium

(Failure of a Member State to fulfil obligations — Non-compliance with a Commission decision on State aid — Decision 2011/678/EU — State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals — Failure to recover the aid granted — Grounds of defence — Difficulties in identifying the beneficiaries of the aid)

Introduction

1. This case concerns an action brought pursuant to Article 108(2) TFEU against the Kingdom of Belgium, by which the European Commission asks the Court to declare that, by failing to take, within the prescribed period, all the necessary measures to recover from the beneficiaries the State aid declared unlawful and incompatible with the internal market by Article 1(3) and (4) of Commission Decision 2011/678/EU of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04)) (‘the decision at issue’), ( 2 ) and by failing to inform the Commission, within the period laid down, of the measures taken to comply with that decision, the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 2 to 4 of that decision.

Background to the dispute

The financing of screening tests for transmissible spongiform encephalopathies (TSE) in bovine animals in Belgium

2. It is apparent from the case-file that, between 2001 and 2006, the Kingdom of Belgium assumed all or part of the costs of the screening tests for transmissible spongiform encephalopathies in bovine animals (‘BSE tests’), which became compulsory on 1 January 2001.

3. During the period between 1 January 2001 and 31 December 2001, those costs were financed by a direct subsidy from the Public Exchequer (Belgium).

4. From 1 January 2002 to 30 June 2004, the BSE tests were prefinanced by the Bureau d’intervention et de restitution belge (Belgian Intervention and Refund Bureau (BIRB)), a federal institution with legal personality.

5. From 1 July 2004 to 30 November 2004, those tests were prefinanced by the Agence fédérale pour la sécurité de la chaîne alimentaire (Federal Agency for the Safety of the Food Chain (FASFC), Belgium), a public institution with legal personality.

6. Between 1 December 2004 and 31 December 2005, the BSE tests were financed on the basis of the provisions of the arrêté royal relatif au financement du dépistage des encéphalopathies spongiformes transmissibles chez les animaux (Royal Decree on the financing of screening for transmissible spongiform encephalopathies in animals) of 15 October 2004 (‘the Royal Decree of 15 October 2004’) ( 3 ) and of the loi relative au financement de l’AFSCA (Law on the financing of the FASFC) of 9 December 2004 (‘the Law of 9 December 2004’). ( 4 ) The Royal Decree of 15 October 2004 provided that a fee of EUR 10.70 per bovine animal presented for slaughter and having to undergo a rapid BSE test was charged by the FASFC to the operator of the slaughterhouse. ( 5 ) It is apparent from the case-file that, during that period, the BSE tests were financed in part by the fees charged pursuant to the Royal Decree of 15 October 2004 and in part by the FASFC out of its reserves and the reimbursable advance payment provided by the Public Exchequer. ( 6 )

7. The method of financing the BSE tests was altered again by the entry into force of two royal decrees adopted on 10 November 2005, one fixing the contributions referred to in Article 4 of the Law of 9 December 2004, ( 7 ) and the other relating to the fees referred to in Article 5 of that law (‘the royal decrees of 10 November 2005’). ( 8 ) The first of those decrees, which repealed the Royal Decree of 15 October 2004, provides that an annual contribution is to be paid by operators to the FASFC, per sector and per establishment. Seven sectors are referred to in particular (agricultural supply, primary production, processing, wholesale, retail, HoReCa (hotels, restaurants and catering), transport). ( 9 ) The second royal decree provides for the payment of fees for the services provided by the FASFC that may be attributed to a specific operator, including services ‘for statutorily imposed sampling and analysis’. ( 10 ) The royal decrees of 10 November 2005 entered into force on 31 December 2005.

8. The financing of the BSE tests in Belgium gave rise to various interventions by the Commission on the basis of the Treaty rules on State aid.

9. Accordingly, by a decision of 13 February 2002, ( 11 ) the Commission approved the aid granted for the period between 1 January and 30 June 2002 (‘the decision of 2002’).

10. In 2005, it exempted, pursuant to Article 15(d) of Regulation (EC) No 1/2004, ( 12 ) aid schemes entitled ‘prefinancing of TSE tests’, implemented on 1 January 2003, and ‘financing of TSE tests’, implemented on 15 October 2004. ( 13 ) The first scheme provided for a maximum aid intensity of EUR 40, and the second for a maximum aid intensity of EUR 33.38, per test.

11. Also in 2005, the Commission approved, on the basis of Article 87(3)(c) EC and up to a maximum of EUR 33.38 per test, the aid which was financed from contributions levied on the whole of the food chain and had been proposed in connection with the reform — implemented by the royal decrees of 10 November 2005 — of the system for financing the FASFC (‘the decision of 2005’). ( 14 ) In that decision, the Commission considered that neither the financing of the FASFC by fees for services rendered to given operators nor the financing of the ‘general random checks’ by the system of contributions levied on the whole of the food chain constituted State aid. ( 15 )

The decision at issue

12. Following complaints received in 2004, the Commission sent a request to the Kingdom of Belgium for information concerning the measures for financing BSE tests. The Belgian authorities responded to that request on 6 February and 14 May 2004.

13. By letter of 23 January 2004, the Kingdom of Belgium notified the Commission of an aid measure intended to cover the costs of screening for TSE in animals. ( 16 ) By that measure, it was intended to prefinance the costs of the BSE tests, the amount of which would have had to be refunded subsequently by means of parafiscal charges. According to the explanation provided to the Commission by the Kingdom of Belgium, that system had already been applied for tests carried out in 2002 and 2003. ( 17 ) As it became apparent that the notified measure had already been put into effect, it was entered in the register of non-notified aid under number NN 45/04.

14. On 16 September 2004, the Belgian authorities gave notice of a new draft royal decree (which subsequently became the Royal Decree of 15 October 2004), providing for a fee system of EUR 10.70 per bovine animal presented for slaughter.

15. Subsequently in the procedure, the Belgian authorities explained that they wished to introduce, through the new system for financing the FASFC, a solidarity-based system for recovering the expenditure related to the BSE tests over a period of 15 years and that all active operators who kept bovine animals during the period in question were to contribute to that system. ( 18 )

16. By letter of 26 November 2008, the Commission informed the Kingdom of Belgium that it had decided to initiate the procedure provided for in Article 108(2) TFEU. ( 19 )

17. In recital 31 of the decision at issue, the Commission stated that the latter related ‘solely to the aid financing the BSE tests for the period 2001-06 and to their system of financing given that the aid for the BSE tests during that period [had been] prefinanced and that that prefinancing [was] the subject of reimbursement spread over several years’.

18. In recitals 32 and 33 of the decision at issue, the Commission pointed out the ‘terminological distinction’ between ‘fees’, designating, in this case, the EUR 10.70 levied by the Kingdom of Belgium from 1 December 2004, and ‘contributions’, namely the levies charged by the FASFC to the entities operating on Belgian territory and broken down among seven sectors. In the section of the decision at issue devoted to the assessment of the measures concerned, the Commission found first of all that the financing of the BSE tests through contributions and other State resources conferred an advantage, for the purposes of Article 107(1) TFEU, on ‘farmers, slaughterhouses and other entities which process, handle, sell or market products from bovine animals subject to mandatory BSE tests by virtue of the applicable legislation’ and therefore involved the granting of aid. ( 20 ) In recital 100 of the decision at issue, the Commission found that, since that aid had not been notified, it was unlawful.

19. The Commission then assessed the compatibility of the aid in the light of Article 107(3)(c) TFEU. For that purpose, it distinguished two periods ‘on the basis of the different legal provisions that apply’. ( 21 )

20. The aid granted during the first period, between 1 January 2001 and 31 December 2002, was assessed and declared compatible on the basis of point 11.4 of the Community guidelines for State aid in the agriculture sector. ( 22 )

21. The aid granted during the second period, between 1 January 2003 and 31 December 2005, by contrast, was examined on the basis of point 21 et seq. of the Community guidelines for State aid concerning TSE tests, fallen stock and slaughterhouse waste (‘the TSE guidelines’). ( 23 ) In that examination, the Commission found that the maximum amount of EUR 40 per test, laid down in point 24 of those guidelines, had been exceeded between 1 January 2003 and 30 June 2004. ( 24 )

22. The Commission therefore concluded, in recital 125 of the decision at issue, that the aid granted to finance BSE tests, ‘in excess of EUR 40 per test during the period from 1 January 2003 to 30 June 2004, which amounts to EUR 6619810.74 in total, is incompatible with the internal market’.

23. In recitals 126 to 129 of the decision at issue, the Commission examined the system proposed by the Kingdom of Belgium for recovering that aid by means of the contributions levied to finance the FASFC and concluded that that system did not meet the requirements for recovery that resulted from the Court’s case-law and Article 14 of Regulation (EC) No 659/1999. ( 25 )

24. Article 1(3) and (4) of the decision at issue is worded as follows: ‘3. For the period from 1 January 2003 to 30 June 2004, financing of BSE tests from State resources constitutes aid compatible with the internal market for farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products that are subject to compulsory BSE testing for amounts of up to EUR 40 per test. Amounts in excess of EUR 40 per test are incompatible with the internal market and must be recovered, with the exception of aid granted to specific projects which, at that time the aid was granted, met all the conditions set in the applicable de minimis Regulation. 4. Belgium unlawfully implemented aid to finance BSE tests in breach of Article 108(3) … TFEU during the period from 1 January 2001 to 30 June 2004.’

25. According to Article 2(1) of the decision at issue, ‘[the Kingdom of] Belgium shall take all necessary measures to recover the unlawful and incompatible aid referred to in Article 1(3) and (4) from its beneficiaries’. Article 2(4) states that ‘recovery shall be effected without delay in accordance with the procedures provided for in national law, provided that they allow the immediate and effective execution of this Decision’.

26. The first and second paragraphs of Article 3 of the decision at issue provide that ‘recovery … shall be immediate and effective’ and ‘[the Kingdom of] Belgium shall ensure that this Decision is implemented within four months of the date of its notification’.

27. Article 4(1)(a) to (d) of the decision at issue establishes that, within two months of the date of notification of the decision, the Kingdom of Belgium had to submit to the Commission a list of the beneficiaries who received the aid referred to in Article 1(3) and (4) of the decision and the total amount of aid received by each one, details of the total amount (principal and recovery interest) to be recovered from the beneficiaries, a detailed description of the measures already taken or planned to comply with the decision, and documents demonstrating that orders to return the aid had been sent to the beneficiaries. Article 4(2) and (3) provides that ‘[the Kingdom of] Belgium shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1(3) … has been completed’ and that, ‘after the two-month period referred to in paragraph 1, [the Kingdom of] Belgium shall submit, at the Commission’s request, a report on the measures already taken and those planned to comply with this Decision. That report shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries’.

28. The decision at issue was challenged by the Kingdom of Belgium before the General Court of the European Union, which dismissed the action. ( 26 ) The appeal brought by the Kingdom of Belgium against that judgment was in turn dismissed by the Court of Justice. ( 27 )

The exchange of correspondence between the Kingdom of Belgium and the Commission following the adoption of the decision at issue

29. On 27 September 2011, the Kingdom of Belgium sent a letter to the Commission with its response to the decision at issue.

30. First, it reiterated its point of view that public financing of the BSE tests does not entail State aid.

31. Secondly, it stated that the Belgian competition authorities were conducting an investigation into possible unlawful pricing agreements between laboratories in relation to BSE tests and that the results of the investigation would affect the calculation of the aid to be repaid.

32. Thirdly, the Kingdom of Belgium argued that Article 2 of the decision at issue, in that it required recovery of the aid in question, was unenforceable in practice. In that regard, it informed the Commission that it simply could not establish an objective link between the animal tested and the various beneficiaries at all stages of the process of production and sale of the end product.

33. Fourthly, it stated that the de minimis rule was applicable ‘to the average amounts in question’. To illustrate that point, it stated, first of all, that the beneficiaries specified in the decision at issue could be divided into six categories (cattle farmers, sellers of live animals, slaughterhouses, production and processing of products, wholesale and retail) and that the total aid to be recovered could be divided in equal shares between the six categories, which gave a total of EUR 1103301.79 per category. It then divided that amount by the number of operators in each category, reaching an average amount per operator which was lower than the de minimis limit applicable to the category.

34. Finally, it stated that it was not possible for it to provide the information referred to in Article 4 of the decision at issue.

35. In reply to the objections put forward by the Kingdom of Belgium, the Commission, by fax of 18 July 2012, stated that ‘the direct beneficiary of the aid is the operator under an obligation to test for BSE who is charged a fee by the slaughterhouse for the cost of the BSE tests’. It inferred from this that it was necessary to verify during the period concerned ‘whether the individual beneficiaries of the BSE testing service carried out in respect of their bovine animals benefited from incompatible aid (that is to say, aid above EUR 40) in excess of the de minimis amount’. In that regard, the Commission mentioned, by way of illustration, a method of calculation consisting in dividing the de minimis amount by the amount in excess of the EUR 40 of compatible aid, in order to obtain the number of tests per operator above which the aid would exceed the de minimis threshold.

36. By letter sent to the Commission on 29 August 2012, the Kingdom of Belgium, after reiterating its view that, in the present case, there was no State aid, and having stated that the investigation by the competition authorities was still ongoing, told the Commission that the method which it had proposed in its fax of 18 July 2012 could apply to the beneficiaries in only one of the sectors indicated in the decision at issue and that, on the other hand, no guidance was given for the other sectors.

37. By fax of 19 October 2012, the Commission reminded the Kingdom of Belgium that it had to implement the decision at issue immediately and effectively, pointing out that the difficulties referred to by it regarding quantifying the aid did not render it absolutely impossible for it to implement the decision. It also called on the Kingdom of Belgium to take all the necessary measures to recover the aid and to provide the information concerning the amount of the aid no later than 1 December 2012, failing which the Commission would consider the possibility of referring the matter to the Court pursuant to Article 108(2) TFEU.

38. On 30 November 2012, the Kingdom of Belgium replied to the Commission’s fax of 19 October 2012. In its reply, it stated, first of all, that it was not possible actually to recover the aid in question while the investigation by the competition authorities was still ongoing. It then focused on the calculation method already proposed in its reply of 27 September 2011, consisting in dividing the total amount of the aid among the six sectors specified in the decision at issue, and concluded that, in view of the relatively small amount to be recovered and the large number of operators concerned, ‘it is highly unlikely that the de minimis thresholds are exceeded’. Finally, the Kingdom of Belgium asked the Commission for an extension of the deadline for implementing the decision, in view, inter alia, of the limited economic impact and slight distortion of competition resulting from the case, and of the action pending before the General Court against the decision at issue.

39. On 14 March 2013, the Commission, considering that it would be useful to analyse in greater detail the method proposed by the Kingdom of Belgium, requested precise details concerning, inter alia, the number of animals tested, the number of facilities in which the animals had been slaughtered, the distribution of the aid between the six sectors in question and the amount of de minimis aid already granted during the period concerned, at national level.

40. By letter sent to the Commission on 17 April 2013, the Kingdom of Belgium stated, in response to the Commission’s request, first of all, that the national ceilings in respect of de minimis aid for primary production were far from being reached since, between 2004 and 2006, of the EUR 22077000 authorised, EUR 18737738 could still be paid out. For the categories of beneficiary indicated in the decision at issue other than primary production, it observed that the de minimis ceiling was, in any event, much higher, namely EUR 200000 for three years per operator instead of EUR 3000. Secondly, the Kingdom of Belgium stated that the average amount in excess of the permitted EUR 40 per test, in the present case EUR 12.34, divided between the six sectors concerned (EUR 2.06 per sector) and applied to the average number of bovine animals slaughtered each year, in the present case 380738 animals, proved that, regardless of the situation considered, the de minimis threshold was not reached, since that threshold could be exceeded only in respect of farms which had slaughtered more than 1458 animals in one year. Finally, the Kingdom of Belgium stated that the last recorded link between a tested animal and a rearing facility does not necessarily mean that that facility is also a beneficiary of the aid, because, during an eight-day period before slaughter, the animal’s owner may change without that having to be registered in the databases.

41. By letter of 16 October 2013, the Commission asked the Kingdom of Belgium to provide, no later than 15 November 2014, a complete list of the individual beneficiaries of the de minimis rule, a complete list of the beneficiaries of the aid and sufficient proof that orders for recovery had been sent to them, pointing out that the bringing of an action before the Court of Justice was being contemplated. It also stated that it did not share the view that the total amount of aid to be recovered could be divided proportionally between the six sectors concerned and that ‘in the absence of precise data, it would appear that it is the producers of primary agricultural production who have mainly benefited from the aid scheme’. Furthermore, the Commission pointed out to the Belgian authorities that the calculation formula which they proposed for the purpose of de minimis aid did not satisfy the requirement of proof that the conditions for de minimis aid have been applied in respect of each individual beneficiary. The Commission finally proposed an alternative method of calculation, according to which, as regards 2003, all herds with at least 97 animals slaughtered would remain below the de minimis limit. It therefore asked the Kingdom of Belgium to record the herds in which more than 97 animals were slaughtered in 2003 and to apply the same calculation for 2004.

42. On 13 November 2013, the Kingdom of Belgium replied that the method of calculation suggested by the Commission in its letter of 16 October 2013 was contrary to the decision at issue, which stated that the alleged aid measure had benefited not only farmers but also other operators active in the various sectors of the food chain for bovine animal products. While taking the view that the distribution of the amount of the aid between those different sectors was the only logical option in the light of the text of the decision, the Belgian authorities, in a spirit of cooperation, suggested to the Commission that it ‘first specify the applicable principles clearly and correctly’ before undertaking, with the limited resources at its disposal, the potentially very onerous exercise of identifying the amount of aid which each beneficiary would have received. Finally, the Kingdom of Belgium informed the Commission that the Belgian competition authority had completed the investigation into a possible cartel between laboratories concerning the prices of BSE tests and that the decision taken by that authority did not affect the aid recovery procedure.

Procedure before the Court

43. By application lodged at the Court Registry on 19 December 2014, the Commission brought the action for failure to fulfil obligations which forms the subject matter of this case. The parties presented oral argument at the hearing on 8 December 2016.

The action

Arguments of the parties

44. The Commission states that, although the Belgian authorities were required to recover the aid in question within a period of four months following notification of the decision at issue, that is to say, no later than 28 November 2011, on that date not only had recovery not taken place and no order for recovery been sent to the beneficiaries, but also neither the list of beneficiaries nor the list of the amounts owed by each of them had been drawn up.

45. According to the Commission, in the present case it is not absolutely impossible for the Kingdom of Belgium to recover the aid at issue, this being the only ground of defence which may be pleaded by a Member State in an action brought under Article 108(2) TFEU.

46. Indeed, the Commission submits that, contrary to what the Kingdom of Belgium claims, the decision at issue identifies the beneficiaries and the nature of their advantage: they are the farmers, slaughterhouses and other entities which process, handle, sell or market bovine animal products that are subject to compulsory BSE testing, inasmuch as the aid measures at issue reduce their costs. It is therefore necessary, in each case, to determine which of those operators would have had to bear the costs of the tests. Depending on the circumstances, that operator may be the farmer, the slaughterhouse, the entity which processed or handled the animal, or the entity which sold or marketed the bovine animal products. It also submits that, throughout the exchange of correspondence with the Kingdom of Belgium, it suggested practical means of implementing the decision at issue, and those means did not present insurmountable difficulties.

47. As regards the Kingdom of Belgium’s claim to rely on the de minimis regulations, the Commission observes that, to do so, it would have first been necessary for the Belgian authorities to identify the individual beneficiaries of the aid, to establish the amount of the aid, to ascertain what other de minimis aid those beneficiaries had received during the same three-year period, to satisfy themselves that the cumulated amount of that aid did not exceed the ceiling authorised by those regulations and to establish that all the other conditions set by those regulations had been observed. However, none of those steps had been taken by the Belgian authorities. Moreover, the Kingdom of Belgium’s contention that the de minimis thresholds are not exceeded is based entirely on an evaluation of the aid received by each operator on the basis of an average between sectors and between operators within each sector, and therefore on a double fiction. As such a method of evaluation cannot be accepted, that contention must be rejected.

48. The Kingdom of Belgium puts forward three grounds of defence.

49. In the first place, it contests the classification of the financing of the BSE tests as aid. Since the costs relating to those tests stem from a statutory obligation imposed for the protection of public health, they cannot be regarded as a burden normally borne by an undertaking’s budget.

50. In the second place, and in the alternative, the Kingdom of Belgium maintains that the aid in question satisfies all the conditions for application of the de minimis regulations. More specifically, so far as concerns the beneficiaries who are not operators active in the primary production of agricultural products, the aid falls within the scope of Article 1 of Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles [107 and 108 TFEU] to de minimis aid. ( 28 ) As regards, on the other hand, beneficiaries who are agricultural producers, the aid is covered by Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles [107 and 108 TFEU] to de minimis aid in the agriculture and fisheries sectors. ( 29 )

51. The Kingdom of Belgium argues that the amount of aid for each individual beneficiary does not exceed the de minimis threshold, amounting to EUR 3000 for farmers and EUR 200000 for beneficiaries active in the other sectors. In that regard, it refers to the method of calculation described in its letter of 26 September 2011 and repeated in its letters of 30 November 2012 and 15 April 2013. According to that method, based on a ‘proportionate distribution of the total amount of the aid’ between six sectors of activity, the average amounts of aid for each undertaking are, for each sector, so far below the applicable de minimis threshold ‘that there is a sufficient degree of certainty that no individual beneficiary exceeds [that] threshold’, and there is no need to specify ‘the possible hypothetical advantage per undertaking for each sector’. This approach is ‘relevant and reasonable’ in view, in particular, of the fact that, ‘in the light of economic reality …, the cost of the BSE tests should be passed on to all the sectors concerned’.

52. According to the Kingdom of Belgium, throughout the exchanges of correspondence with the Belgian authorities the Commission adopted positions which were inconsistent and contradictory, as well as incompatible with the decision at issue. First, in its letter of 14 March 2013, it considered the method of calculation proposed by the Kingdom of Belgium to be ‘worthy of detailed analysis’, only to rule it out, without justification, in its letter of 16 October 2013. Secondly, in its replies to the General Court in the case which gave rise to the judgment of 25 March 2015, Belgium v Commission (T‑538/11, EU:T:2015:188), it acknowledged that the whole food chain had benefited from the aid at issue and indicated the slaughterhouses as being its direct beneficiaries, whereas, in its letter of 16 October 2013, it considered that it was farmers who had mainly benefited from the aid. It is also apparent from certain views expressed by the Commission that it considers the criterion of the ownership of the animal to be decisive, although that criterion does not appear in the decision at issue. In that regard, the Kingdom of Belgian maintains that the decision at issue does not support the conclusion that there is only one beneficiary per animal tested and that, for example, a restaurant or butcher’s shop could be classified as beneficiaries only in so far as they were the owners of animals tested at the time of slaughter. Moreover, such a criterion is based only on the fact that the slaughterhouses ‘often’ spontaneously pass on the costs relating to the BSE tests to the owner of the tested animal. First, the spontaneous nature of the passing on of the costs does not lead to the conclusion that it occurs in every case and, secondly, if one were to take into consideration the passing on of costs throughout the various stages of production and marketing of bovine meat products, in order to ascertain who has actually benefited from the aid, one would arrive at the final consumer, who, as such, cannot be the beneficiary of aid.

53. In the third place, and in the further alternative, the Kingdom of Belgium maintains that it has cooperated fairly and constructively with the Commission, in spite of the objective difficulties encountered in identifying the individual beneficiaries of the aid and in calculating the amounts by which each of them benefited. On the other hand, the Commission has acted unfairly, by not giving clear guidelines for recovering the aid at issue.

54. By way of conclusion, the Kingdom of Belgium maintains that either one follows the decision at issue, according to which the aid at issue benefited all the operators active in the various sectors of the food chain for bovine products, with the consequence that the amounts per beneficiary are quite simply impossible to calculate, or else one takes the approach set out by the Commission in its letter of 16 October 2013, according to which the aid must be recovered from farmers alone, in which case the decision at issue must be regarded as containing ‘particularly serious and manifest defects such that it could be deemed non-existent’, within the meaning of the Court’s case-law. ( 30 )

Analysis

55. It should be noted first of all that the Kingdom of Belgium does not deny that the financing classified as aid under Article 1(3) and (4) of the decision at issue has not been the subject of any recovery measure or that the information referred to in Article 4 of that decision was not communicated to the Commission within the prescribed period.

56. On the other hand, it puts forward three lines of argument to contest the failure to fulfil its obligations with which it is charged. Those arguments relate to incorrect classification of the financing of the BSE tests as State aid, to the application, in the present case, of the de minimis rules and to it being impossible to implement the decision at issue.

The arguments alleging incorrect classification of the financing of the BSE tests as State aid

57. As its principal argument, the Kingdom of Belgium disputes the classification of the financing of the BSE tests as aid in the decision at issue.

58. In that regard, I would point out that, according to settled case-law, a Member State cannot plead the unlawfulness of a decision as a defence against an action for failure to fulfil obligations based on the failure to implement that decision. ( 31 ) It is in the context of different proceedings, namely an action for annulment under Article 263 TFEU, that any challenge to the legality of such an act of EU law must be made. ( 32 )

59. In the present case, as stated in point 43 of this Opinion, the action for annulment brought by the Kingdom of Belgium against the decision at issue was dismissed by a judgment of the General Court and the appeal brought before the Court of Justice against that judgment was also dismissed. It should be pointed out, secondarily, that in both sets of proceedings the Kingdom of Belgium put forward, with regard to the classification by the decision at issue of the financing of the BSE tests as aid, the same arguments as have been set out in its defence in the present case. Those arguments, therefore, have already been examined and dismissed both by the General Court and by the Court of Justice.

60. The only exception to the rule stated in point 58 of this Opinion concerns the situation where the decision the non-implementation of which is being challenged must be regarded as non-existent. ( 33 ) As stated in point 54 of this Opinion, in its defence the Kingdom of Belgium raised a ground of challenge alleging that the decision at issue is non-existent. However, as I shall show in the remainder of my analysis, that ground of challenge cannot succeed.

61. It follows that the Kingdom of Belgium cannot validly raise arguments alleging an incorrect classification of the measures at issue as State aid in defence to the Commission’s application for a declaration of failure to fulfil obligations.

The arguments relating to application of the de minimis rules

62. In the second place, and in the alternative, the Kingdom of Belgium submits that there is a ‘reasonable degree of certainty’ that the de minimis thresholds were not exceeded as regards the aid at issue.

63. As stated in points 29 and 50 of this Opinion, the calculation method used by the Kingdom of Belgium to reach that conclusion consists in distributing proportionately the total amount of the aid at issue among six sectors, identified in its letters to the Commission of 26 September 2011, 30 November 2012 and 17 April 2013 ( 34 ) and corresponding, in essence, to the categories of beneficiary mentioned in the decision at issue. The Kingdom of Belgium maintains, in essence, that that calculation method is the only one compatible with the decision at issue.

64. For the reasons which I am about to explain, I do not share that view. That method seems to me, on the contrary, to go against both the letter and the spirit of the decision at issue.

65. The classification in the decision at issue of the State financing of the BSE tests as aid is based on the idea that the effect of such financing is to reduce a burden that is normally borne by the budget of a given undertaking, conferring a selective advantage upon it. ( 35 ) Thus, it is apparent from recitals 90, 92 and 93 of the decision at issue and from the general scheme of that decision that, although the category of potential beneficiaries of the aid linked to that financing includes the various operators in the food chain for bovine animal products subject to compulsory BSE testing, the actual beneficiary of the aid is an individual undertaking, which is under an obligation to have the test carried out and to assume the costs thereof directly or indirectly. ( 36 ) Furthermore, this is logical. Since the costs of the BSE tests are generated at the slaughter stage, it is at that stage that the aid is granted and must therefore be recovered.

66. It should be pointed out that the decision at issue follows, in that regard, the Commission’s consistent approach which has already been expressed not only in the decision to initiate the formal investigation procedure ( 37 ) but also in the decision of 2005.

67. In the latter decision, the Commission distinguishes, inter alia, between financing of the ‘general random checks’, which ‘cannot be invoiced to an individual undertaking, as they are intended to ensure that the entire food chain is monitored’, on the one hand, and financing of the ‘costs of the compulsory checks which concern the production or marketing of products’, on the other hand. Whereas the former ‘does not confer a specific economic advantage on operators’, the latter gives rise to a selective advantage for the undertakings concerned. ( 38 ) The Commission therefore concluded, in recitals 74 and 75 of that decision, that the financing of part of the costs of the BSE tests by compulsory contributions, envisaged by the Kingdom of Belgium in the draft royal decree which was notified, ‘reduces the charges normally included in the budget of an undertaking’ by granting it a selective advantage for the purposes of Article 87(1) EC. ( 39 )

68. The Commission had already expressed the same point of view in the decision of 2002. ( 40 ) In that decision, the notified measure was classified as aid ‘because it gives the beneficiaries an economic advantage … which is reflected in particular in the non-payment, by the owners of living animals which must be tested, of part of the cost of the compulsory tests, which are paid for by bovine animals which are subject to the tax but do not have to be tested’. ( 41 ) The farmers were considered to be the beneficiaries of the aid.

69. The TSE guidelines are to like effect. Paragraph 25 thereof provides that ‘State aid towards the costs of TSE tests has to be paid to the operator where the samples for the tests have to be taken’ and ‘must be reflected in correspondingly lower prices charged by this operator’. In other words, the aid is, in principle, paid to the slaughterhouse ( 42 ) and is compulsorily passed on, by the slaughterhouse, to the operator for whom the test has been carried out. ( 43 ) It should be pointed out that that operator is not identified as being the farmer, contrary to what was the position in the case of point 11.4 of the Community guidelines for State aid in the agriculture sector, which was applicable to aid to finance BSE tests up to 31 December 2002. ( 44 ) Although it is clear that this will most frequently be the case, the criterion stated in Article 25 of the TSE guidelines makes it possible to take into account also situations in which the operator is not a farmer, but an undertaking operating at other stages of the bovine chain or even the slaughterhouse itself, which acts not on behalf of a customer but on its own behalf.

70. It is therefore apparent from the reasons underlying the classification in the decision at issue of the public financing of the BSE tests as aid that the beneficiary of the aid is, as the Commission clearly stated in its letter of 18 July 2012, the undertaking which would have had to pay the price of the test if the costs thereof had not been assumed by the State and not, as the Kingdom of Belgium wrongly maintains, all the undertakings involved in the process of manufacturing, processing and marketing products derived from the tested animal.

71. Admittedly, the decision at issue indicates as beneficiaries of the aid the ‘farmers, slaughterhouses and other entities which process, handle, sell or market products from bovine animals subject to mandatory BSE tests’. However, as I have already stated in point 65 of this Opinion, it is clear from that decision that it is only in so far as it was responsible for the carrying out of the BSE test and required to bear the costs thereof that an undertaking, operating at one of those various stages of the bovine chain, may be regarded as having benefited from an advantage for the purposes of Article 107 TFEU, in the form of a reduction of charges and may, therefore, be regarded as the actual beneficiary of the aid at issue.

72. That has two consequences for the implementation of the decision at issue. The first is that, contrary to what the Kingdom of Belgium maintains in its letter of 27 September 2011, it is by no means necessary, in order to identify the beneficiaries of the aid at issue, to establish an objective link between each animal tested and all the operators participating from the time of its slaughter to the sale of the final product. The defence put forward by the Kingdom of Belgium to the effect that it was impossible to carry out such an operation therefore cannot succeed.

73. The second, and more fundamental, consequence is that a ‘globalised recovery’ method, consisting in distributing the total amount of the aid among the various sectors of the bovine industry and, within each sector, among all the operators in the sector, cannot meet the requirements of a proper implementation of the decision at issue, since it does not ensure recovery of the aid from the undertaking which has actually benefited from it.

74. Such a method is not only contrary to the logic underlying the classification in the decision at issue of the financing of the BSE tests as aid, but also runs counter to the very letter of that decision.

75. Indeed, in paragraphs 126 to 129 of the decision at issue, the Commission rejected the method, proposed by the Kingdom of Belgium, of recovering the aid by means of contributions levied to finance the FASFC, stating that it ‘does not meet the requirements for the recovery of unlawful and incompatible aid’. Contrary to what the Kingdom of Belgium suggests, there is a clear analogy between the method rejected in the decision at issue and the method proposed by that Member State in its correspondence with the Commission. In both cases, the result is that the aid is recovered not individually, from its actual beneficiaries, but in a ‘globalised’ manner, from all the operators in the bovine sector.

76. In order to comply with the decision at issue and with the principles concerning the recovery of aid incompatible with the internal market, the Kingdom of Belgium is therefore required to effect individual recovery of the aid at issue from its actual beneficiaries. Moreover, that is in accordance with the principle that the recovery of aid is intended to remove the distortion of competition caused by the competitive advantage which the recipient of that aid has enjoyed in the market compared with its competitors, thereby restoring the situation prior to the payment of the aid. ( 45 )

77. As the present case involves an aid scheme, it is quite possible that, in an individual case, the amount granted on the basis of that scheme escapes the prohibition laid down in Article 107(1) TFEU by reason of the fact that it falls within the scope of the de minimis rules. However, the Belgian authorities may reach that conclusion only after determining the amount of the aid from which the undertaking in question has benefited and after ascertaining whether all the conditions laid down by the applicable de minimis rules are satisfied in the case of that undertaking. Moreover, those authorities are required to make available to the Commission any information justifying, in each individual case, application of the de minimis rule. ( 46 )

78. Simply to state that there ‘is a reasonable degree of certainty that no individual beneficiary exceeds the de minimis threshold’ is therefore not enough, particularly in the circumstances of this case in which that statement is based on the application of a method of calculation which, as I have just shown, is contrary to the spirit and to the letter of the decision at issue and to the principles concerning the recovery of aid.

79. Consequently, the arguments put forward by the Kingdom of Belgium relating to application of the de minimis rules must, in my view, be rejected.

The arguments that it was impossible to implement the decision at issue

80. In the third place, and in the further alternative, the Kingdom of Belgium puts forward a series of arguments aimed at establishing that it was impossible to implement the decision at issue on the grounds, first, that it lacked clarity and that the guidance given by the Commission was inconsistent, and secondly, that there were practical difficulties. The Kingdom of Belgium also states that it has cooperated fairly with the Commission.

81. All those arguments must, in my view, be rejected in their entirety.

82. First of all, the Kingdom of Belgium, contrary to what it claims, had sufficiently clear guidance as to how to implement the decision at issue, particularly as to ascertaining from which operators the aid had to be recovered.

83. As I have already had occasion to note in points 65 to 75 of this Opinion, that guidance was not only clearly included in the decision at issue and subsequently fleshed out by the Commission in its exchange of correspondence with the Kingdom of Belgium, but could also be derived from previous Commission decisions concerning the Belgian scheme for financing the BSE tests, and from the applicable rules.

84. Accordingly, not only did the decision at issue and the Commission’s subsequent explanations clearly indicate as the beneficiary of the aid at issue, for each animal tested, the operator who was subject to the obligation to have the test carried out and to whom the costs thereof would have had to be invoiced, but that was also apparent in equally clear terms from the TSE guidelines, the decision of 2002, the decision of 2005 and the decision to initiate the formal investigation procedure. I would add that various passages in the decision at issue show that the Kingdom of Belgium had understood perfectly the Commission’s argument that the costs of the BSE tests were to be imposed upon individual operators, more often than not farmers, and that the amount of the aid at issue should have been recovered from those operators. ( 47 )

85. All of this unambiguous guidance was ignored by the Kingdom of Belgium. In its correspondence with the Commission and, subsequently, in its pleadings before the Court, it merely reiterated its argument that, ‘in the light of economic reality’ and the fact that ‘the BSE epidemic was a problem affecting the whole of the food chain’, ‘the costs of the BSE tests [should] be passed on to all the sectors concerned’ and borne equally by all the operators in the bovine sector. ( 48 )

86. However, that argument, far from being compatible with the decision at issue, as the Kingdom of Belgium claims, is not only inconsistent with it, but is tantamount, more fundamentally, to calling into question the very classification, in that decision, of the financing of the BSE tests as aid. Moreover, it was expressly rejected both by the General Court in the judgment of 25 March 2015, Belgium v Commission (T‑538/11, EU:T:2015:188), and, on appeal, by the Court of Justice, in the judgment of 30 June 2016, Belgium v Commission (C‑270/15 P, EU:C:2016:489), both of which confirmed that the costs linked to the BSE tests were in the nature of ‘a charge borne by the budget of an undertaking’. ( 49 )

87. Next, as regards the arguments alleging that it was impossible to implement the decision at issue owing to insurmountable difficulties of a practical nature, I would point out that identifying the individual beneficiaries of the aid at issue and determining the amount of aid for each of them is not, contrary to what the Kingdom of Belgium maintains, excessively complicated.

88. First, as I have already mentioned in point 72 of this Opinion, the argument relating to the impossibility of identifying an objective link between each animal tested and all the operators concerned, from slaughter to the sale of the final product, must be rejected as wholly irrelevant, since the decision at issue does not require such an operation.

89. Secondly, I would point out that, at that time when the decision at issue was adopted, the Kingdom of Belgium had for several years operated a system of fees for services rendered, paid to the FASFC by the slaughterhouse, but borne by the operator for whom the BSE test was carried out. ( 50 ) It is therefore nothing new for the Belgian authorities to identify that operator.

90. Thirdly, the mere fact — also invoked by the Kingdom of Belgium in support of the assertion that it was impossible to identify the actual beneficiary of the aid at issue — that the costs of the BSE test may, depending on market conditions, be passed on to the downstream operators and as far as the end consumer does not support the conclusion that it is the end consumer, if those costs are assumed by the State and not the operator wholly or partly exempt from paying them, who is the beneficiary of the aid measure. ( 51 )

91. Fourthly, the Kingdom of Belgium cannot rely on the fact that identifying the actual beneficiaries of the aid might be excessively lengthy and onerous for the departments concerned, in view inter alia of the limited resources available to them and the fact that some of the operators concerned are no longer active in the market. It is settled case-law that mere practical difficulties which do not make it absolutely impossible to implement the decision concerned do not suffice to justify its non-implementation.

92. Fifthly, it seems to me that the argument of the Kingdom of Belgium that, assuming that the competent authorities have to take the ownership of the animal tested as a basis for identifying the beneficiaries of the aid, they would be unable to ascertain the cases in which a change of ownership took place within the eight days prior to slaughter, since such a change of ownership was not subject to a duty of registration, also cannot be relied on to show that it was impossible to implement the decision at issue. First, the eventuality to which the Kingdom of Belgium refers appears to concern only a small number of cases and, secondly, an operator wrongly identified as the owner of the animal would in any event have the opportunity to challenge the order for recovery by providing proof of change of ownership. On the other hand, I infer from that argument that, with the exception of the aforementioned cases, identification of the owner of the animal tested does not pose major problems for the Belgian authorities. As the Commission recognises, the ownership of the animal at the time of slaughter might be a relevant criterion for identifying the operator for whom the test was carried out and who had to bear the costs of the test.

93. It is apparent from all the foregoing considerations that the decision at issue is not incapable of implementation, or even non-existent, owing to its allegedly ‘nebulous’ or contradictory nature, or impossible to implement by reason of practical obstacles.

94. Finally, I consider that the Kingdom of Belgium’s argument that it has cooperated fairly with the Commission, even assuming that it is sufficient in itself to justify a total failure to implement the decision at issue, must be rejected in the light of the abovementioned considerations.

95. On the other hand, contrary to what the Kingdom of Belgium suggests, I consider that it is not possible to ascribe a lack of cooperation to the Commission, since it clarified its position with regard to the practical arrangements for implementing the decision as early as its fax of 18 July 2012, showing at the same time that it was prepared to take the difficulties raised by the Kingdom of Belgium into consideration and ready to examine the alternative proposals made by it.

The failure to fulfil obligations

96. The parties agree that, on the date on which the present action was brought, more than three years after the adoption of the decision at issue, the Kingdom of Belgium had not taken the necessary measures to recover the unlawful and incompatible aid, referred to in Article 1(3) and (4) of that decision. At that date, not only had no order for recovery been issued by the Belgian authorities, but they had not yet identified the individual beneficiaries of the aid or calculated the amounts received by each of them. The Kingdom of Belgium had also not sent to the Commission, as it was required to do under Article 4 of the decision at issue, the information listed in Article 4(1)(a) to (d).

97. According to settled case-law, the only defence available to a Member State in opposing an action for failure to fulfil obligations brought by the Commission under Article 108(2) TFEU is that it was absolutely impossible for it to implement the decision in question properly. ( 52 )

98. It is apparent from all the considerations set out above that the Kingdom of Belgium has failed to establish such impossibility of implementing the decision at issue.

99. In that regard, it should be pointed out that the Court has stated that the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision in question, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome. ( 53 )

100. In the present case, although the Kingdom of Belgium proposed to the Commission an alternative method for implementing the decision at issue, the fact remains that that method had the effect of denying the individual nature of the aid at issue and was rightly rejected by the Commission. Furthermore, the Kingdom of Belgium merely justifies the failure to effect recovery of the aid at issue by referring to practical difficulties involved in implementing the decision at issue, which, as I have already shown, were not such as to render its implementation impossible.

Conclusion

101. In the light of all the foregoing considerations, I propose that the Court should: – declare that, by failing to take, within the prescribed period, all the necessary measures to recover from the beneficiaries the State aid declared unlawful and incompatible with the internal market by Article 1(3) and (4) of Commission Decision 2011/678/EU of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04)), and by failing to inform the European Commission, within the period laid down, of the measures taken to comply with that decision, the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 2 to 4 of that decision, and – order the Kingdom of Belgium to pay the costs.

( 1 ) Original language: French.

( 2 ) OJ 2011 L 274, p. 36.

( 3 ) Moniteur belge of 8 November 2004, p. 75290.

( 4 ) Moniteur belge of 17 January 2005.

( 5 ) See Article 2 of the Royal Decree of 15 October 2004.

( 6 ) See recital 55 of the decision at issue, which reproduces the Kingdom of Belgium’s observations on the chronology of the financing of the BSE tests; see also recital 83 et seq. of that decision.

( 7 ) Moniteur belge of 21 November 2005.

( 8 ) Moniteur belge of 21 November 2005.

( 9 ) See Articles 3 to 11.

( 10 ) See Article 2(9). Annex II to that decree sets the amount of the fees for BSE tests.

( 11 ) State aid No N 21/2002 — Belgium — Acceptance of costs of compulsory BSE tests (C(2002) 447 final).

( 12 ) Commission Regulation of 23 December 2003 on the application of Articles [107 and 108 TFEU] to State aid to small and medium-sized enterprises active in the production, processing and marketing of agricultural products (OJ 2004 L 1, p. 1). Article 15 of that regulation concerns specifically ‘support for the livestock sector’.

( 13 ) Registered under numbers XA 53/04 and XA 54/04 respectively (OJ 2005 C 105, p. 5).

( 14 ) Decision C(2005) 4203 of 9 November 2005 on State aid N 9/05 and N 10/05 concerning the financing of the FASFC. That decision is available on the Commission’s website at the following address: http://ec.europa.eu/competition/state_aid/cases/197533/197533_517261_5_2.pdf.

( 15 ) See recital 107 of the decision.

( 16 ) That measure was initially entered in the register of notified aid, under number N 54/04.

( 17 ) See the decision at issue, recitals 18 to 20.

( 18 ) See the decision at issue, recital 29.

( 19 ) That decision was published in the Official Journal of the European Union (OJ 2009 C 11, p. 8).

( 20 ) See recital 99 of the decision at issue. In the same recital, the Commission found, by contrast, that the financing of the BSE tests by fees did not involve aid, given that they were intended to cover the costs of services provided at the market price.

( 21 ) See recital 112.

( 22 ) OJ 2000 C 232, p. 17 (corrected version). See recitals 113 to 117 of the decision at issue. Under point 11.4 of those agricultural guidelines, the intensity of the aid financing the compulsory BSE tests could be up to 100% of the eligible costs.

( 23 ) OJ 2002 C 324, p. 2.

( 24 ) See recital 121 of the decision at issue. In the same recital, the Commission found that, from 1 July 2004, the total cost of the BSE tests was below EUR 40. As regards aid granted after 1 January 2006, the Commission refers to the decision of 2005 (see recital 124).

( 25 ) Council Regulation of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).

( 26 ) Judgment of 25 March 2015, Belgium v Commission (T‑538/11, EU:T:2015:188).

( 27 ) Judgment of 30 June 2016, Belgium v Commission (C‑270/15 P, EU:C:2016:489).

( 28 ) OJ 2006 L 379, p. 5.

( 29 ) OJ 2004 L 325, p. 4.

( 30 ) Judgments of 27 June 2000, Commission v Portugal (C‑404/97, EU:C:2000:345, paragraph 35), and of 22 March 2001, Commission v France (C‑261/99, EU:C:2001:179, paragraph 19).

( 31 ) See, inter alia, judgments of 12 February 2015, Commission v France (C‑37/14, not published, EU:C:2015:90, paragraph 77), and of 10 October 2013, Commission v Italy (C‑353/12, not published, EU:C:2013:651, paragraph 43).

( 32 ) See judgment of 14 February 2008, Commission v Greece (C‑419/06, not published, EU:C:2008:89, paragraph 52).

( 33 ) See, inter alia, judgments of 10 October 2013, Commission v Italy (C‑353/12, not published, EU:C:2013:651, paragraph 43); of 27 June 2000, Commission v Portugal (C‑404/97, EU:C:2000:345, paragraph 35); and of 22 March 2001, Commission v France (C‑261/99, EU:C:2001:179, paragraph 19).

( 34 ) I would point out, incidentally, that the categories of operator listed in each of those letters do not match exactly.

( 35 ) See, in particular, recital 90 of the decision at issue.

( 36 ) In my view, the same interpretation should be placed on paragraph 50 of the judgment of 30 June 2016, Belgium v Commission (C‑270/15 P, EU:C:2016:489), in which the Court stated that, ‘in the present case, the financing of the BSE screening tests by the Kingdom of Belgium … benefits all of the operators in the bovine sector which bear the cost of those tests’ (emphasis added).

( 37 ) See recitals 56 to 59 of that decision.

( 38 ) See recitals 70 to 75 of the decision of 2005.

( 39 ) I note that, in the decision of 2005, the aid measure examined was considered compatible with the TSE guidelines since it satisfied the conditions laid down by those guidelines and, in particular, that of the authorised maximum ceiling of EUR 40 per test (see recitals 93 to 96 and 107).

( 40 ) Cited in footnote 11 of this Opinion.

( 41 ) See p. 2 of the decision.

( 42 ) The samples for the tests are, as a general rule, taken at the place of slaughter.

( 43 ) Compliance by the Kingdom of Belgium with the conditions laid down in paragraph 25 of the TSE guidelines was indeed verified by the Commission in the decision at issue before it authorised the financing in question up to the limit of EUR 40 per test (see recitals 122 and 123).

( 44 ) See paragraph 24 of the TSE guidelines.

( 45 ) See, inter alia, judgment of 17 November 2011, Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 61).

( 46 ) See, to that effect, judgment of 12 February 2015, Commission v France (C‑37/14, not published, EU:C:2015:90, paragraphs 70 to 73).

( 47 ) See, inter alia, recitals 38, 68 and 71 of the decision at issue.

( 48 ) These statements appear in paragraph 11 of the rejoinder, but similar statements are found throughout the correspondence with the Commission, and in the pleadings of the Kingdom of Belgium before the General Court and the Court of Justice in the proceedings relating to the action for annulment of the decision at issue and to the appeal against the judgment dismissing that action.

( 49 ) See, inter alia, paragraphs 77 and 83 to 96 of the judgment of the General Court, and paragraphs 35 and 36 of the judgment of the Court of Justice.

( 50 ) See recitals 32, 39 to 44, 61 and 68 of the decision at issue.

( 51 ) See to that effect, although in a different context, the judgment of 21 December 2016, Commission v Air Lingus and Ryanair Designated Activity (C‑164/15 P and C‑165/15 P, EU:C:2016:990), in which airlines relied on the fact that they passed on to their customers the advantage stemming from aid in the form of a tax reduction which had been granted to them as a ground for objecting to recovery of that aid.

( 52 ) See, inter alia, judgments of 12 December 2013, Commission v Italy (C‑411/12, not published, EU:C:2013:832, paragraph 36), and of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraph 48 and the case-law cited).

( 53 ) See judgment of 12 December 2013, Commission v Italy (C‑411/12, not published, EU:C:2013:832, paragraph 37 and the case-law cited).