European Commission v Republic of Poland.
Date: 2011-04-14
50. In that connection, it must be recalled that the relevant date for the assessment of a failure to fulfil obligations brought pursuant to the second paragraph of Article 88(2) EC can be, contrary to the Republic of Poland’s assertions and because that provision does not provide for a pre-litigation phase in contrast to 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 former provision is applied the reference period, only that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission (Case C‑378/98 Commission  v Belgium  [2001] ECR I‑5107, paragraph 26; Case C‑499/99 Commission  v Spain  [2002] ECR I‑6031, paragraph 28; Case C‑207/05 Commission  v Italy  [2006] ECR I‑70, paragraph 31; and Case C‑232/05 Commission  v France  [2006] ECR I‑10071, paragraph 32).
54. In that connection, it must be recalled, as the Commission argued, that recovery of unlawful aid is the logical consequence of the finding that it is unlawful and that consequence cannot depend on the form in which the aid was granted (see, in particular, Case C‑183/91 Commission v Greece [1993] ECR I‑3131, paragraph 16; Commission v Portugal [2000] ECR I‑4897, paragraph 38; and Case C‑507/08 Commission  v Slovakia  [2010] ECR I‑0000, paragraph 42).
55. Consequently, the Member State to which a decision requiring recovery of illegal aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision (see Case C‑209/00 Commission  v Germany [2002] ECR I‑11695, paragraph 31; Case C‑404/00 Commission  v Spain  [2003] ECR I‑6695, paragraph 21; and Case C‑232/05 Commission  v France , paragraph 42). This must result in the actual recovery of the sums owed (see, to that effect, Case C‑415/03 Commission  v Greece [2005] ECR I‑3875, paragraph 44, and Commission  v France , paragraph 42).
56. Furthermore, it is settled case-law that the obligation on a Member State to abolish aid found by the Commission to be incompatible with the common market is to restore the previous situation on the European Union market (Case C‑350/93 Commission  v Italy  [1995] ECR I‑699, paragraph 21, and Case C‑75/97 Belgium  v Commission  [1999] ECR I‑3671, paragraph 64). As long as the aid is not recovered, the beneficiary of the aid is able to keep funds deriving from the aid declared incompatible and to benefit from the resulting unfair competitive advantage ( Commission  v France , paragraph 47).
57. Thus a Member State which, pursuant to a decision of the Commission, 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 (Case C‑209/00 Commission v Germany , paragraph 34; Case C‑210/09 Scott and Kimberly Clark  [2010] ECR I‑0000, paragraph 21; and Commission  v Slovakia , paragraph 51).
58. The Court has also held that a Member State can fulfil such an obligation to recover only if the measures adopted by it are appropriate for the purpose of establishing the normal conditions of competition which were distorted by the grant of the unlawful aid the recovery of which has been ordered by a Commission decision (see, Case C‑209/00 Commission v Germany , paragraph 35, and Scott and Kimberly Clark , paragraph 22).
60. However, it must be recalled that, as follows from the case-law on bankrupt undertakings that have received aid, the restoration of the previous situation and the elimination of the distortion of competition resulting from the unlawfully paid aid may, in principle, be achieved by registration of the liability relating to the repayment of the aid in question in the schedule of liabilities (Case 52/84 Commission v Belgium  [1986] ECR 89, paragraph 14; Case C‑142/87 Belgium  v Commission (‘Tubemeuse’)  [1990] ECR I‑959, paragraphs 60 to 62; and Case C‑277/00 Commission  v Germany  [2004] ECR I‑3925, paragraph 85).
61. It is in the light of those principles that the Republic of Poland’s arguments must be assessed.
62. In the first place, that Member State claims that all the debtors which received the aid at issue were the subject of insolvency proceedings and that all the creditors having debts relating to that aid registered their debts in order to be paid off in the various proceedings. The Commission was informed by the Polish authorities of the declaration of insolvency concerning those debtors and the relevant statements of claims, so that Decision 2008/344 was fully implemented in accordance with its content.
63. In that connection, it must be stated that, as far as concerns the insolvency proceedings, on the date of expiry of the period prescribed in Article 4(2) of Decision 2008/344 and taking account of its extension by the suspension of operation of that decision granted by the President of the General Court, only TB was the subject of insolvency proceedings as the declaration of insolvency being made on 16 August 2006. The declarations of insolvency regarding BA and HB, were made on 25 June 2008 and 29 April 2009 respectively, that is after the expiry of that period.
64. It follows that, on the date on which the period expired, the Republic of Poland had not provided the documents enabling the Commission to conclude that TBG was insolvent and had definitively and completely ceased its activity, so that the mere registration of the debts relating to the repayment of the aid in the schedule of liabilities of those companies in the group could suffice in order to comply with Decision 2008/344.
65. Therefore, as regards BA and HB, the case-law on bankrupt undertakings which have received aid is not applicable so that the registration of those debts after the expiry of the period mentioned above does not constitute proper implementation by the Republic of Poland of its obligations under Articles 4 and 5 of Decision 2008/344.
69. In that connection, it must be recalled that according to settled case-law, 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 (see Case C‑214/07 Commission v France [2008] ECR I‑8357, paragraph 44, and Commission  v Slovakia , paragraph 43).
70. It follows from the same case-law, that the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see, inter alia, Joined Cases 485/03 to C‑490/03 C ommission v Spain , paragraph 74, and Case C‑214/07 Commission v France , paragraph 46).
72. It must also be pointed out that apprehension of internal difficulties in the course of implementing a decision on State aid cannot justify a failure by a Member State to comply with its obligations under Community law (see, to that effect, in particular, Case C‑52/95 Commission  v France [1995] ECR I‑4443, paragraph 38; Case C‑265/95 Commission v France  [1997] ECR I‑6959, paragraph 55; Case C‑280/95 Commission v Italy , paragraph 16; and Case C‑441/06 Commission  v France  [2007] ECR I‑8887, paragraph 43).
74. The Court does not need to examine the head of claim based on Article 5 of Decision 2008/344 and seeking a declaration that the Republic of Poland has failed to inform the Commission of the measures taken and to be taken in order to implement the decision, since the Member State did not in fact implement the decision within the prescribed period (see, inter alia, Case C‑177/06 Commission  v Spain [2007] ECR I‑7689, paragraph 54 and Case C‑214/07 Commission  v France , paragraph 67).