European Commission v Kingdom of Spain.
Date: 2013-01-24
64. First, it is important to bear in mind the importance, in both the legal order of the European Union and the legal systems of the Member States, of the principle of res judicata (see Commission  v Luxembourg , paragraph 26 and the case-law cited).
65. The Court has already held that that principle is also applicable to infringement proceedings ( Commission  v Luxembourg , paragraph 27).
66. It follows from well-established case-law of the Court that res judicata however extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question ( Commission  v Luxembourg , paragraph 27 and the case-law cited).
67. For the purpose of ascertaining whether the Commission has infringed the principle of res judicata  by bring the present action, it is necessary to examine whether, having regard to the factual and legal background of the two sets of proceedings concerned, the present case and that which gave rise to the judgment in Case C-499/99 Commission  v Spain  are essentially identical in fact and in law ( Commission  v Luxembourg , paragraph 28).
68. More specifically, it is a question of assessing whether the subject-matter of the present case is the same as that which gave rise to the judgment in C-499/99 Commission  v Spain  (see, to that effect, Commission  v Portugal , paragraph 27).
69. Secondly, it must be pointed out that the means of redress provided for by the second subparagraph of Article 108(2) TFEU is merely a variant of the action for failure to fulfil obligations, specifically adapted to the special problems which State aid poses for competition within the internal market (see judgment in Case C-378/98 Commission  v Belgium  [2001] ECR I-5107, paragraph 24 and the case-law cited).
70. In the context of proceedings under Article 258 TFEU, the Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion and that any subsequent changes cannot be taken into consideration (see, inter alia, Commission  v Belgium , paragraph 25).
75. The period prescribed in Article 3 of Decision 1999/509 must therefore be regarded as having been replaced by that resulting from the letter of 16 December 2005, with the result that it is the latter period which is relevant for the purpose of assessing the failure to fulfil obligations alleged by the Commission in the present case (see, to that effect, Commission  v Belgium , paragraph 28; Commission  v Poland , paragraph 50; and Case C-485/10 Commission  v Greece , paragraph 31).
90. As a preliminary point, it must be borne in mind that, as the Court has repeatedly held, recovery of unlawful aid is the logical consequence of the finding that it is unlawful (see, inter alia, Commission  v Poland , paragraph 54 and the case-law cited).
91. Consequently, the Member State to which a decision requiring recovery of illegal aid is addressed is obliged under Article 288 TFEU to take all measures necessary to ensure implementation of that decision. This must result in the actual recovery of the sums owed in order to eliminate the distortion of competition caused by the competitive advantage procured by the unlawful aid (see Commission  v Poland , paragraphs 55 and 56).
92. Under Article 14(3) of Regulation No 659/1999, the recovery of aid declared unlawful and incompatible by a decision of the Commission must, as is also apparent from recital 13 in the preamble to that regulation, be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of that decision, a condition which reflects the requirements of the principle of effectiveness laid down by the case-law of the Court (see Commission  v Poland , paragraph 59, and Case C-243/10 Commission  v Italy  [2012] ECR, paragraph 36).
95. It must be borne in mind in that regard that, in accordance with the settled case-law of the Court, the reference date for the application of the second subparagraph of Article 108(2) TFEU is that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission (see, inter alia, Case C-485/10 Commission  v Greece , paragraph 31).
99. It is also settled case-law that the only defence available to a Member State against an application by the Commission under Article 108(2) TFEU 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 of that institution ordering the recovery of the aid in question (see, inter alia, Commission  v Poland , paragraph 69 and the case-law cited).
101. In any event, it is important to bear in mind that, first, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely invokes the legal, political or practical difficulties with which it was confronted in implementing the decision concerned, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing that decision which could have enabled those difficulties to be overcome and that, secondly, alleged internal difficulties which are encountered when implementing the decision of the Commission cannot justify a failure by that Member State to comply with its obligations under European Union law (see Commission  v Poland , paragraphs 70 and 72).
107. As the Court has ruled on numerous occasions, registration of the liability relating to the repayment of the aid in question in the schedule of liabilities can meet the recovery obligation only if, where the State authorities are unable to recover the full amount of aid, the insolvency proceedings result in the winding up of the undertaking which received the unlawful aid, that is to say, in the definitive cessation of its activities (Case C-610/10 Commission  v Spain , paragraph 104 and the case-law cited).
109. However, where the undertaking which received the unlawful aid is insolvent and a new company has been created to continue the activities of the insolvent undertaking, the pursuit of those activities may, where the aid concerned is not recovered in its entirety, prolong the distortion of competition brought about by the competitive advantage which that undertaking enjoyed in the market as compared with its competitors. Accordingly, such a newly created company may, if it retains that advantage, be required to repay the aid in question. That is inter alia the case where it is established that that company continues genuinely to derive a competitive advantage because of the receipt of that aid, especially where it acquires the assets of the undertaking in liquidation without paying the market price in return or where it is established that the effect of that company’s creation is circumvention of the obligation to repay the aid. That applies, in particular, if the payment of a market price is not sufficient to cancel out the competitive advantage linked to receipt of the unlawful aid. The foregoing considerations are moreover not invalidated by the judgment in Case C-496/09 Commission  v Italy , relied on by the Kingdom of Spain (Case C-610/10 Commission  v Spain , paragraphs 106 and 108).