Kingdom of Spain v Commission of the European Communities.
Date: 2000-10-12
16 According to settled case-law, Article 92(1) of the Treaty does not distinguish between measures of State intervention by reference to their causes or aims but defines them in relation to their effects (see, inter alia, Case 173/73 Italy v Commission [1974] ECR 709, paragraph 27; and Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 20).
18 It is true, as the Court held in paragraph 36 of its judgment in Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907 in relation to the Italian special administration procedure for large companies in difficulties, that the possible loss of tax revenue for the State as a result of the application to an undertaking of legislation on court-supervised recovery schemes and insolvency does not in itself justify treating that legislation as aid. Such a consequence is an inherent feature of any statutory system laying down a framework for relations between an insolvent undertaking and the general body of its creditors, and the existence of an additional financial burden borne directly or indirectly by the public authorities as a means of granting a particular advantage to the undertakings concerned may not automatically be inferred from it (see, to that effect, Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraph 21).
21 In those circumstances, the Commission was justified in deciding that, in the particular circumstances of the case, the non-payment of taxes and social security contributions by Indosa, Cunosa, Migsa and Gursa during the periods mentioned in the contested Decision, constituted illegal aid which was incompatible with the common market within the meaning of Article 92(1) of the Treaty.
25 In that regard, it should be observed that no provision of Community law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission's decision to include information enabling the recipient to work out himself, without overmuch difficulty, that amount (see, to that effect, Case 102/87 France v Commission [1988] ECR 4067, paragraph 33).
26 The Commission may, therefore, legitimately confine itself to declaring that there is an obligation to repay the aid in question and leave it to the national authorities to calculate the exact amount of aid to be repaid where, as in the present case, that calculation requires tax and social security systems, the detailed rules of which are laid down in the applicable national legislative provisions, to be taken into account.
34 In that regard, the Court must reiterate that, although the recovery of unlawfully granted aid, intended to re-establish the previously existing situation, must in principle take place in accordance with the relevant procedural provisions of national law, those provisions are to be applied in such a way that the recovery required by Community law is not rendered practically impossible (see, inter alia, Case 142/87 Belgium v Commission [1990] ECR I-959, Tubemeuse, paragraph 61).
35 According to the relevant case-law, the objective of re-establishing the previously existing situation is attained once the aid in question, increased where appropriate by default interest, has been repaid by the recipient, which thereby forfeits the advantage which it enjoyed over its competitors (see Case C-348/93 Commission v Italy [1995] ECR I-673, paragraphs 26 and 27). On that point, it should be noted that the absence of any claim to interest on the unlawfully granted sums at the time of their recovery amounted to maintaining incidental financial advantages, consisting of the grant of an interest-free loan, for the undertaking concerned.
36 However, the national legislation applicable in the present case provides that the debts of undertakings which have been declared insolvent cease to produce interest with effect from the date of the relevant declaration. Such a rule, justified by the common interest of all the creditors in not burdening the insolvent undertaking's assets with new debts likely to worsen the situation, applies to all creditors alike, private or public, in all procedures of this kind.
37 Taking account of the legislation's objective, the absence of any discrimination in its application and the fact that it applies only to interest falling due after the declaration of insolvency on aid unlawfully received before that declaration, the legislation cannot be regarded as rendering the recovery of aid required by Community law virtually impossible.
38 In those circumstances, although the Commission was justified in including in the contested Decision the requirement that the amounts to be recovered should include interest due in respect of the period from the date on which the aid was granted until the actual date of repayment, it was wrong, having regard to the relevant Spanish legislation, not to exclude from that requirement interest falling due after Indosa and Cunosa were declared insolvent on aid unlawfully received before that declaration.
39 Therefore, the contested Decision must be annulled in so far as it includes in the amount of aid to be recovered interest falling due after Indosa and Cunosa were declared insolvent on aid unlawfully received before that declaration. The remainder of the action must be dismissed.