Keywords

Summary



Keywords

1. Action for failure to fulfil obligations – Failure to fulfil the obligation to recover unlawful aid – Defences

(Art. 88(2), EC; Art. 4(3), TEU)

2. State aid – Commission decision declaring aid incompatible with the common market and ordering its recovery – Obligations of the Member States

(Art. 88(2), EC; Council Regulation No 659/1999, Recital 13 and Art. 14(3))

3. State aid – Recovery of unlawful aid – Application of national law – Conditions and limits

(Art. 88(2), EC; Council Regulation No 659/1999, Art. 14(3))

Summary

1. 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 obligations is to plead that it was absolutely impossible for it properly to implement the decision ordering recovery.

In the event of difficulties in implementation, the Commission and the Member State must, pursuant to the rule imposing on the Member States and the European Union institutions reciprocal duties of genuine cooperation, which underlies, in particular, Article 4(3) TEU, work together in good faith with a view to overcoming those difficulties while fully observing the FEU Treaty provisions, in particular, the provisions on State aid.

(see paras 43-44)

2. The Court cannot accept the literal interpretation of a Commission decision declaring State aid incompatible with the common market relied on by the Member State concerned to justify its failure to implement the decision to the effect that that decision requires ‘the process of reclaiming’ instead of ‘the achievement of recovery’, which, in the opinion of that State, entails merely an obligation to take various steps in order to reclaim the wrongful aid, but does not mean that it is obliged actually to recover it.

In the context of Union legislation, and with particular regard to Recital 13 and Article 14(3) of Regulation No 659/1999, relating to the application of Article 88 EC, the purpose of such a Commission decision is the restoration of effective competition, and consequently that decision requires the Member State to which it is addressed actually to obtain, without delay, repayment of the wrongful State aid.

(see paras 5, 46-48)

3. A Member State which, pursuant to a Commission decision declaring State aid incompatible with the common market, is obliged to recover unlawful aid is free to choose the means of fulfilling that obligation, provided that the measures chosen do not adversely affect the scope and effectiveness of Union law. Union law therefore imposes an obligation to take all appropriate measures to ensure the execution of Commission decisions on the recovery of unlawful aid but respects the specific features of the various procedures provided by Member States for that purpose.

As regards, in particular the question whether, where, as part of a procedure for arrangement with creditors under court supervision, a national court judgment decides on an arrangement which involves a debt to a public authority being partly written off, and that write-off is thereafter categorised by the Commission as State aid, the finality of that judgment can prevent the recovery of that aid, Union law does not in all circumstances require a national court to disapply domestic rules of procedure conferring the force of res judicata on a judgment, even if to do so would make it possible to remedy an infringement of European Union law by the judgment in question. However, when under national law there were available to the authorities of the Member State concerned resources which, if diligently used, could have ensured that that Member State was able to recover the aid at issue, and when the information provided by that State is insufficient to allow the conclusion that it took, within the prescribed period, all the measures which it could have employed in order to obtain the repayment of the unlawful aid, that State must be regarded as having failed to fulfil its obligations under the fourth paragraph of Article 249 EC and the Commission decision.

(see paras 51-52, 55, 60-61, 64-65)