Commission of the European Communities v Kingdom of Spain.
Date: 2003-06-26
19.  As a preliminary point, it should be borne in mind that, according to Article 3(1)(g) EC, the activities of the Community include the establishment of a system ensuring that competition in the internal market is not distorted and that, in that context, Article 87(1) EC declares any aid granted by a Member State which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between the Member States, to be incompatible with the common market (Case C-209/00   Commission   v   Germany   [2002] ECR I-11695, paragraph 29).
20.  In the interest of ensuring the effectiveness of that prohibition, the Commission is competent, when it has found that aid is incompatible with the common market, to decide that the State concerned must abolish or alter it. To be of practical effect, this abolition or modification may include an obligation to require repayment of aid granted in breach of the EC Treaty (see Case 70/72   Commission   v   Germany   [1973] ECR 813, paragraph 13).
21.  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  , cited above, paragraph 31).
22.  Since there are no Community provisions on the procedure for recovery of wrongly paid amounts, illegal aid must, in principle, be recovered in accordance with the relevant procedural provisions of national law (see, to that effect, Case C-24/95   Alcan Deutschland   [1997] ECR I-1591, paragraph 24).
23.  Moreover, that case-law was confirmed by Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), in particular Article 14(3) thereof, which provides that recovery is to be effected without delay and in accordance with the procedures laid down by the national law of the Member State concerned (see Case C-209/00   Commission   v   Germany  , paragraph 33).
24.  A Member State which, pursuant to a decision of the Commission, is obliged to recover illegal aid is thus free to choose the means of fulfilling that obligation, provided that the measures chosen do not adversely affect the scope and effectiveness of Community law (see Case C-209/00   Commission   v   Germany  , paragraph 34).
25.  Finally, where a Member State fails to comply with the obligation to recover illegal aid, the Commission is entitled to seek from the Court a declaration that the Treaty has been infringed, either under Article 226 EC or under Article 88(2)EC, the latter action being simply a variant of the procedure for a failure to comply with obligations which has been adapted to the specific problems affecting competition in the common market which have been caused by the maintenance of State aids which have been declared illegal (see Case C-209/00   Commission   v   Germany  , paragraph 37).
26.  It is settled case-law that, in proceedings for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled.  It is the Commission's responsibility to provide the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see Case 96/81   Commission   v   Netherlands   [1982] ECR 1791, paragraph 6).
27.  However, the Member States are obliged, by virtue of Article 10 EC, to facilitate the achievement of the Commission's tasks, which consist in particular of ensuring that the provisions adopted by the institutions pursuant to the Treaty are applied (see   Commission   v   Netherlands  , cited above, paragraph 7).
Arguments of the parties
40.  It must be borne in mind that the system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 226 EC and 227 EC, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 230 EC and 232 EC, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures.  Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision (see, in particular, Case 226/87   Commission   v   Greece   [1988] ECR 3611, paragraph 14; Case C-74/91   Commission   v   Germany   [1992] ECR I-5437, paragraph 10; and Case C-404/97   Commission   v   Portugal   [2000] ECR I-4897, paragraph 34).
41.  The position could be different only if the measure in question contained such particularly serious and manifest defects that it could be deemed non-existent (Commission   v   Greece  , cited above, paragraph 16; Case C-74/91   Commission   v   Germany  , paragraph 11; and   Commission   v   Portugal  , paragraph 35).
42.  That finding also applies in an action for failure to fulfil obligations brought under the second subparagraph of Article 88(2) EC.
44.  It is settled case-law that recovery of unlawful aid is the logical consequence of the finding that it is unlawful and that 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, and   Commission   v   Portugal  , paragraph 38).
45.  In accordance with a consistent line of decisions, where a Commission decision requiring the cessation of State aid incompatible with the common market has not been the subject of a direct action or where such an action has been dismissed, the only defence available to a Member State in opposing an infringement action by the Commission under Article 88(2) EC is to plead that it was absolutely impossible for it to implement the decision properly (Case C-348/93   Commission   v   Italy   [1995] ECR I-673, paragraph 16; Case C-261/99   Commission   v   France   [2001] ECR I-2537, paragraph 23; and Case C-499/99   Commission   v   Spain   [2002] ECR I-6031, paragraph 21).
46.  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 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 (see Case C-350/93   Commission   v   Italy  , cited above, paragraph 16;   Commission   v   France  , cited above, paragraph 24; Case C-378/98   Commission   v   Belgium   [2001] ECR I-5107, paragraph 31; and   Commission   v   Spain  , cited above, paragraph 24).
47.  However, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step 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 the difficulties to be overcome (see Case 94/87   Commission   v   Germany   [1989] ECR 175, paragraph 10;   Commission   v   Italy  , paragraph 14; and   Commission   v   Spain  , paragraph 25).
51.  As regards, next, the alleged legal complexity of the recovery operation, owing to the difficulty in determining whether the applicable procedure is that provided for in civil law or whether it is appropriate to have recourse to the administrative procedure, it must be observed that although, in the absence of Community provisions relating to the procedure applicable to the recovery of illegal aid, such recovery must take place, in principle, in accordance with the relevant provisions of national law.  Such provisions must however be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration (see   Commission   v   Portugal  , paragraph 55).
55.  In that regard, it is settled law that the apprehension of internal difficulties cannot justify a failure by a Member State to comply with its obligations under Community law (see, to that effect, 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;   Commission   v   Italy  , paragraph 16, and   Commission   v   Portugal  , paragraph 52).
56.  Finally, the Spanish Government's argument that the Commission initiated the action within an unusually short time after notification of Decision 2000/131 cannot justify the failure to implement that decision.