Judgment of the Court (Seventh Chamber) of 10 October 2013 — Commission v Italy

(Case C‑353/12)

‛Failure of a Member State to fulfil obligations — State aid — Aid for Ixfin SpA — Aid which is illegal and incompatible with the internal market — Recovery — Non-performance’

1. State aid — Recovery of unlawful aid — Obligation — Duty to comply immediately and effectively with the Commission’s decision (Arts 108(2) TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2010/359, Art. 3(1)) (see paras 31, 32)

2. State aid — Recovery of unlawful aid — Undertakings which have received aid and which have become insolvent — Registering the aid in the schedule of liabilities in order to restore the status quo (Art. 108(2) TFEU) (see paras 33, 34)

3. Actions for failure to fulfil obligations — Failure to observe the obligation to recover aid granted unlawfully — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Obligation of the Member State to undertake real steps in relation to the undertakings concerned and to propose to the Commission alternative solutions enabling such difficulties to be overcome — Obligation of the Commission and of the Member State, where there are difficulties of implementation, to cooperate in finding a solution consistent with the Treaty — Failure to adopt within the time limits prescribed the measures necessary to recover from the beneficiaries any aid declared unlawful — Failure to fulfil obligations (Art. 4(3) TEU; Arts 108(2) TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2010/359) (see paras 41-43, 45, 47, operative part)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt the measures necessary to comply with Articles 2, 3 and 4 of Commission Decision C(2009) 8123 of 28 October 2009 on State aid C 59/07 implemented by Italy for Ixfin SpA (OJ 2010 L 167, p. 39) — Obligation to recover immediately aid declared unlawful and incompatible with the common market and to inform the Commission thereof — Insolvent undertaking — Implementation not absolutely impossible.

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period all measures necessary to recover from Ixfin SpA the State aid declared unlawful and incompatible with the internal market in Article 1 of Commission Decision 2010/359/EC of 28 October 2009 on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA, and by not having submitted to the European Commission, within the period prescribed, the information listed in Article 4 of that decision, the Italian Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and under Articles 2 to 4 of that decision;

2. Orders the Italian Republic to pay the costs.

Judgment of the Court (Seventh Chamber) of 10 October 2013 — Commission v Italy

(Case C‑353/12)

‛Failure of a Member State to fulfil obligations — State aid — Aid for Ixfin SpA — Aid which is illegal and incompatible with the internal market — Recovery — Non-performance’

1. State aid — Recovery of unlawful aid — Obligation — Duty to comply immediately and effectively with the Commission’s decision (Arts 108(2) TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2010/359, Art. 3(1)) (see paras 31, 32)

2. State aid — Recovery of unlawful aid — Undertakings which have received aid and which have become insolvent — Registering the aid in the schedule of liabilities in order to restore the status quo (Art. 108(2) TFEU) (see paras 33, 34)

3. Actions for failure to fulfil obligations — Failure to observe the obligation to recover aid granted unlawfully — Defences — Absolute impossibility of implementation — Criteria for assessment — Difficulties in implementing — Obligation of the Member State to undertake real steps in relation to the undertakings concerned and to propose to the Commission alternative solutions enabling such difficulties to be overcome — Obligation of the Commission and of the Member State, where there are difficulties of implementation, to cooperate in finding a solution consistent with the Treaty — Failure to adopt within the time limits prescribed the measures necessary to recover from the beneficiaries any aid declared unlawful — Failure to fulfil obligations (Art. 4(3) TEU; Arts 108(2) TFEU and 288, fourth para., TFEU; Council Regulation No 659/1999, Art. 14(3); Commission Decision 2010/359) (see paras 41-43, 45, 47, operative part)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt the measures necessary to comply with Articles 2, 3 and 4 of Commission Decision C(2009) 8123 of 28 October 2009 on State aid C 59/07 implemented by Italy for Ixfin SpA (OJ 2010 L 167, p. 39) — Obligation to recover immediately aid declared unlawful and incompatible with the common market and to inform the Commission thereof — Insolvent undertaking — Implementation not absolutely impossible.

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period all measures necessary to recover from Ixfin SpA the State aid declared unlawful and incompatible with the internal market in Article 1 of Commission Decision 2010/359/EC of 28 October 2009 on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA, and by not having submitted to the European Commission, within the period prescribed, the information listed in Article 4 of that decision, the Italian Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and under Articles 2 to 4 of that decision;