Commission communication to the Member States
Date: 1995-06-22
Institutions: European Commission
Subjects: State aid, competition policy, control of State aid, infringement procedure (EU)













EUR-Lex - 31995Y0622(01) - EN






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31995Y0622(01)

Commission communication to the Member States  


Official Journal C 156 , 22/06/1995 P. 0005 - 0005 





Commission communication to the Member States (95/C 156/05)(Text with EEA relevance)Supplementing the Commission's letter No SG(91) D/4577 of 4 March 1991 concerning the procedures for the notification of aid plans and procedures applicable when aid is provided in breach of the rules of Article 93 (3) of the EC Treaty.'In 1991 the Commission sent the Member States the letter referred to above, in which it reiterated its concern at the number of cases in which aid was being granted in breach of Article 93, that is to say without the Commission's prior authorization.Citing the findings in recent decisions of the Court of Justice (1), the Commission said then that where aid had been granted unlawfully it would if necessary adopt a provisional decision requiring the Member State to suspend the aid forthwith.In the judgments cited, the Court did not accept that the Commission had power to find an aid measure incompatible with the common market on the sole ground that it had been granted unlawfully; but it did hold that the Commission could take "measures . . . to counteract any infringement of Article 93 (3) of the Treaty".The Commission considers that in some cases an order requiring the suspension of aid which has been unlawfully granted will not go far enough: such an order will not always counteract the infringements of the procedural rules which may have been committed, particularly where all or part of the aid has already been paid out.On the basis of the same judgments, therefore, the Commission would now inform you that in appropriate cases it may - after giving the Member State concerned the opportunity to comment and to consider alternatively the granting of rescue aid, as defined by the Community guidelines - adopt a provisional decision ordering the Member State to recover any moneys which have been disbursed in infringement of the procedural requirements. The aid would then have to be recovered in accordance with the requirements of domestic law; the sum repayable would carry interest running from the time the aid was paid out. The rate of interest to be applied would be the commercial rate referred to in the Commission's letter of 22 February 1995, i.e. the same as that applied in the recovery of aid granted unlawfully and found to be incompatible with the common market.As was the case with the provisional decisions contemplated in the Commission's letter of 1991, if the Member State fails to comply with an order of this kind the Commission may refer the matter to the Court of Justice direct, by way of an application for interim measures analogous to the applications provided for in the second subparagraph of Article 93 (2).Here too it is the Commission's intention to make use of its powers whenever required to safeguard the effectiveness of Article 93 of the EC Treaty`.(1) Case C-301/87 Boussac [1990] ECR I, p. 307 and Case C-142/87 Tubemeuse [1990] ECR I, p. 959.