Case C‑93/17

European Commission

v

Hellenic Republic

(Failure of a Member State to fulfil obligations — State aid — Aid declared unlawful and incompatible with the internal market — Obligation of recovery — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Undertaking which engages in both civil and military activities — Non-implementation — Essential interests of the security of a Member State — Article 346(1)(b) TFEU –Financial penalties — Periodic penalty payment — Lump sum — Payment capacity — ‘N’ factor — Factors which are the basis for the assessment of the ability to pay — Gross domestic product — Weighting of votes of the Member State in the Council of the European Union — New voting rules in the Council)

Summary — Judgment of the Court (First Chamber), 14 November 2018

State aid — Decision of the Commission finding aid incompatible with the internal market and ordering its recovery — Determination of the obligations of the Member State — Duty to implement the Commission’s decision immediately and effectively — Obligation of recovery — Scope — Actual recovery of the sums owed — Recipients in difficulty or bankrupt — Irrelevant (Arts 108(2) and 288 TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Period for implementation — Reference date for assessing whether there has been a failure to fulfil obligations — Date of expiry of the period prescribed in the letter of formal notice (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Purpose — Prevention of the repetition of similar infringements (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Imposition of a penalty payment — Condition — Failure to comply continuing up to the time of the Court’s examination of the facts — Recovery of aid incompatible with the internal market — Undertakings which have received aid and which have become insolvent — Registration in the schedule of liabilities so as to restore the prior situation — Need to procced to the recovery of the aid or the winding-up of the undertaking within the period prescribed by the Commission (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Determination of the form to be taken and of the amount — Discretion of the Court — Criteria (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Criteria — Gravity of the infringement — Failure to recover aid incompatible with the internal market — Fundamental nature of the provisions of the Treaty on State aid — Mitigating circumstances — Difficulties in implementing — Obligation for the Member State to undertake real steps as regards the undertakings at issue and to propose alternative solutions to the Commission enabling such difficulties to be overcome — Repetition of unlawful conduct by the Member State concerned (Arts 3(3) and 51 TEU; Art. 260(2) TFEU; Protocol No 27 annexed to the EU and FEU Treaties)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Criteria — Duration of the infringement (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Calculation of the amount — Criteria — Payment capacity — Gross domestic product of the Member State — Consideration of the context of the economic crisis — Number of votes the Member State has in the Council — New double-majority system — Not included (Art. 260(2) TFEU; Protocol No 36 annexed to the EU and FEU Treaties, Art. 3(1) and (2))

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Frequency of the penalty payment — Recovery of aid incompatible with the internal market — Assessment by the Commission of state of progress of the measures for compliance with the judgment (Art. 260(2) TFEU)

Actions for failure to fulfil obligations — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Breach of the obligation to comply with the judgment — Pecuniary penalties — Periodic penalty payment — Lump sum — Whether the two penalties should be cumulated — Lawfulness (Art. 260(2) TFEU)