Commission of the European Communities v Federal Republic of Germany.
Date: 2002-12-12
29.  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.
30.  In order to ensure that that prohibition is effective, the Commission has competence, where it finds that aid is incompatible with the common market, to decide that the Member State concerned must abolish or modify it. To be of practical effect, that abolition or modification may include an obligation to require repayment of the aid granted in breach of the Treaty (see Case 70/72   Commission   v   Germany   [1973] ECR 813, paragraph 13).
31.  The Member State to which such 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.
32.  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).
33.  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 93 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.
34.  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.
35.  It follows from the above that a Member State can fulfil such an obligation to recover only if the measures adopted by it are suitable to re-establish the normal conditions of competition which were distorted by the grant of the illegal aid and are consistent with the relevant provisions of Community law.
37.  Finally, it must be observed that, 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.
38.  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).
39.  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).
40.  As regards the implementation of a decision requiring the recovery of illegal aid, where a Member State recovers that aid by means other than a cash payment, it must provide the Commission with all the information enabling it to establish that the means chosen constitute an adapted implementation of the decision.
69.  The German Government nevertheless contends that, with respect to the implementation of Decision 2000/392, the Commission has failed to comply with its obligation to cooperate in good faith in cases which present difficulties. Although it notified an implementation measure to the Commission and, in addition, submitted an implementation proposal which could have replaced the first measure, the Commission rejected both that measure and that proposal without any explanation.
70.  In that regard, it should be noted that 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 Treaty obligations is to plead that it was absolutely impossible for it to implement the decision properly (see,   inter alia  , Case C-261/99   Commission   v   France   [2001] ECR I-2537, paragraph 23).
71.  As is clear from all the above considerations, the German Government has failed to take the measures necessary to recover from the beneficiary the aid which is the subject of Decision 2000/392.
72.  It follows that the German Government's complaint regarding the alleged failure by the Commission to cooperate in good faith cannot affect that Government's failure to comply with its obligations.