Case T-52/12 R

Hellenic Republic

v

European Commission

‛Application for interim measures — State aid — Compensation payments made in 2008 and 2009 by the Greek Agricultural Insurance Organisation (ELGA) — Decision declaring the aid incompatible with the internal market and ordering its recovery — Application for suspension of operation of the decision — Prima facie case — Urgency — Weighing up of interests’

Summary — Order of the President of the General Court, 19 September 2012

Application for interim measures — Suspension of operation of an act — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof — Commission decision ordering the recovery of State aid — Recovery liable to give rise to perturbation of public order in a Member State experiencing a profound economic and financial crisis — Included

Application for interim measures — Suspension of operation of an act — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action — Action against a Commission decision finding aid unlawful and ordering its recovery — Plea relating to the existence of exceptional circumstances precluding the recovery of aid — Plea not prima facie lacking in foundation

See the text of the decision. (see paras 10-11)

In proceedings for interim measures, the condition relating to a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant in support of the main action appears, prima facie, to be relevant and in any event not unfounded, in that it reveals the existence of a difficult legal issue the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out in the context of proceedings for interim measures but must be the subject of the main proceedings, with the result that the action is not prima facie without reasonable substance. In the context of an application for suspension of the operation of a Commission decision finding State aid incompatible with the common market, there is, at first sight, a prima facie case in respect of arguments which raise the legal question, not yet decided by the case-law, whether, on account of the quite particular and exceptional difficulties linked to the austerity measures which have been a feature of the reality of a Member State’s national economy for several years, the national sector receiving the aid could be regarded as being neither exposed to strong competition nor organised for international trade, preventing the aid from having been such as to affect trade and competition between Member States appreciably for the purposes of Article 107(1) TFEU. Furthermore, even if the aid fulfilled all the conditions of that provision, the case-law leaves open the question whether the Member State concerned may legitimately plead exceptional circumstances such as to render it excessive to recover the aid, given that it had to face a serious disturbance in its national economy for the purposes of Article 107(3)(b) TFEU, and whether the Commission, drawing inspiration from that provision of primary law, should have foregone requiring any recovery from a sector seriously weakened by that disturbance. (see paras 13, 29-31, 34)

The urgency of an application for interim measures must be assessed in relation to the need for an interlocutory order in order to prevent serious and irreparable harm to the party requesting the interim measures. It is for that party to adduce solid evidence that it cannot wait for the outcome of the main proceedings without having to suffer personally harm of that kind. Although it is not necessary for the imminence of the harm to be demonstrated with absolute certainty, its occurrence must nevertheless be foreseeable with a sufficient degree of probability. The party seeking the interim measures remains, in any event, required to prove the facts that form the basis of its claim that serious and irreparable harm is likely and are said to enable the judge hearing the application to determine the precise consequences which the absence of the measures applied for would in all probability entail. Purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures. That applies where the immediate recovery of unlawful State aid from several thousand beneficiaries would entail administrative difficulties liable to cause serious and irreparable harm to a Member State whose general financial situation is extremely difficult, such as the risk of undermining the priorities of the tax authorities designed to combat tax evasion, given the need to involve a very large number of members of the tax authorities’ staff in order to recover the aid from those beneficiaries, and the risk of perturbation of public order as immediate recovery of the aid may trigger demonstrations liable to degenerate into violence, such demonstrations having already taken place in similar situations. (see paras 36, 43, 47-50)

In the case of an application for interim measures made by a Member State, it is to be noted that the Member States are responsible for those interests which are regarded as general interests at national level and may defend them in proceedings for interim measures. The Member States may, in particular, seek the grant of interim measures by asserting that the contested measure could seriously jeopardise performance of their State tasks and public order. (see para. 37)