Scott SA and Kimberly Clark SAS v Ville d'Orléans.
Date: 2010-05-20
20. As the Court observed at paragraph 49 in Commission  v France , Article 14(3) of Regulation No 659/1999 reflects the requirements of the principle of effectiveness laid down previously by case‑law (see Case 94/87 Commission  v Germany  [1989] ECR 175, paragraph 12; Case C‑24/95 Alcan Deutschland [1997] ECR I-1591, paragraph 24; and Case C‑209/00 Commission  v Germany  [2002] ECR I‑11695, paragraphs 32 to 34); that case‑law is therefore relevant to the application of that provision.
21. In accordance with the principle of effectiveness, as consistently applied specifically to State aid in the case-law, 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 (see, to that effect, Alcan Deutschland , paragraph 24; Case C‑209/00 Commission  v Germany , paragraph 34; and Case C‑369/07 Commission  v Greece  [2009] ECR I-0000, paragraph 67).
22. 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, to that effect, Case C‑209/00 Commission  v Germany , paragraph 35).
24. It is therefore necessary to examine whether the application of those national provisions, whilst taking account of the general context of national law of which they form a part (see, to that effect, Case C‑312/93 Peterbroeck  [1995] ECR I‑4599, paragraph 14; Joined Cases C‑430/93 and C‑431/93 van Schijndel and van Veen  [1995] ECR I‑4705, paragraph 19; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 33), is ultimately irreconcilable with the requirement of immediate and effective recovery of aid, as provided for in Article 14(3) of Regulation No 659/1999 and as interpreted in the light of the guidance set out in the case-law referred to in paragraphs 21 and 22 above.
25. In that regard, it must be stated at the outset that review by the national court of the formal legality of an assessment issued for the recovery of unlawful State aid and possible annulment of the assessment on grounds of non-compliance with the requirements of Article 4 of Law No 2000‑321 must be viewed simply as an expression of the principle of effective judicial protection which, according to the Court’s settled case-law, is a general principle of Union law (see Case C‑432/05 Unibet  [2007] ECR I-2271, paragraph 37 and case-law cited).
29. In that regard, the competent authority and the national court are required, inter alia, under Article 14(3) of Regulation No 659/1999, to ensure that the decision ordering the recovery of the unlawful aid is fully effective and achieves an outcome consistent with the objective pursued by that decision, namely to ensure that funds corresponding to the aid that has already been reimbursed are not once again made available to the aid recipient, even provisionally.
30. If, under national law, the assessments in question may be rectified in circumstances guaranteeing that the previously-reimbursed aid is not, even provisionally, once again paid out to the recipients in the event of annulment of those assessments by the national court, that annulment will not then have any actual effect on the implementation of Decision 2002/14. Those recipients will not have at their disposal, even provisionally, amounts equal to the aid which they reimbursed previously, with the result that they will remain without the competitive advantage which would be unduly conferred on them if they were once again in receipt of those amounts. In those circumstances, annulment alone of the assessments in question will not prevent immediate and effective execution of that decision, as required by Article 14(3) of Regulation No 659/1999.