Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations - Failure to comply with a Commission decision relating to State aid - Obligation to recover the aid granted - Reference period - Period fixed by the decision failure to implement which is denied or, subsequently, by the Commission

(EC Treaty, Arts 93(2), second subpara., and 169 (now Arts 88(2), second subpara., EC and 226 EC))

2. Actions for failure to fulfil obligations - Failure to comply with the obligation to recover aid granted - Defence - Absolutely impossible to implement - Obligation of the Commission and of the Member State, where there are difficulties of implementation, to cooperate in finding a solution complying with the Treaty

(EC Treaty, Arts 5 and 93(2) (now Arts 10 EC and 88(2) EC)

Summary

1. The means of redress provided for by the second subparagraph of Article 93(2) of the Treaty (now the second subparagraph of Article 88(2) EC) is merely a variant of the action for a declaration of failure to fulfil Treaty obligations, specifically adapted to the special problems which State aid poses for competition within the common market.

Because the second paragraph of Article 93(2) of the Treaty does not provide for a pre-litigation phase, in contrast to Article 169 of the Treaty (now Article 226 EC), and therefore the Commission does not issue a reasoned opinion allowing Member States a certain period within which to comply with its decision, when the second paragraph of Article 93(2) is applied the reference period can only be that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission.

( see paras 24, 26 )

2. The only defence available to a Member State in opposing an application by the Commission under Article 93(2) of the Treaty (now Article 88(2) EC) for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it to implement the decision properly.

The fact that a Member State can only plead in its defence against such an action that implementation was absolutely impossible does not prevent a State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, from submitting those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 5 of the Treaty (now Article 10 EC), work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid.

The condition of absolute impossibility is not satisfied where the defendant government merely informs the Commission of the legal and practical difficulties involved in implementing the decision, without taking any step whatsoever to recover the aid from the undertakings in question, and without proposing to the Commission any alternative arrangements for implementing the decision which would have enabled the difficulties to be overcome.

Lastly, it is the Member State addressee of a decision ordering it to recover unlawfully paid aid which is required to submit proposals first in cases of difficulty.

( see paras 30-32, 50 )