Commission of the European Communities v Hellenic Republic.
Date: 2005-05-12
33. On that point, it must be noted that, as shown by the information given by the Commission which is not disputed by the Greek Government, the operation in issue transferred all the assets of the company Olympic Airways, free of all debts, to the new company Olympic Airlines. It must be added that that operation was structured in such a way as to make it impossible, under national law, to recover the debts of the former company Olympic Airways from the new company Olympic Airlines.
34. That being the case, the operation created an obstacle to the effective implementation of Decision 2003/372 and to the recovery of the aid by means of which the Greek State had supported the commercial activities of that company. The purpose of that decision, which aims to restore undistorted competition in the civil aviation sector, was thus seriously compromised.
35. It must be added that the action taken by the Greek authorities, that is to say, the adoption of a decision to proceed with recovery of Olympic Airways’ debt of EUR 41 million, had no real effect with regard to the actual reimbursement of that sum by the company. Furthermore, the Greek Government did not provide any explanation as to why it might be absolutely impossible to proceed with the recovery of that debt. According to settled case-law, 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 properly to implement the decision ordering recovery (see, in particular, Case C-280/95 Commission  v Italy [1998] ECR I-259, paragraph 13, and Case C‑378/98 Commission  v Belgium [2001] ECR I-5107, paragraph 30).
38. As for the argument of the Hellenic Republic in relation to the absence of a financial benefit as a result of the forbearance which a private investor would have shown towards the persistent non-payment of certain sums, it must be noted that that argument calls into question the lawfulness of Decision 2003/372. In the context of the present action, which concerns the failure to implement a decision on State aid which has not been referred to the Court by the Member State to which it is addressed, the latter is not justified in challenging the lawfulness of such a decision (see, in particular, Case C-404/97 Commission  v Portugal [2000] ECR I-4897, paragraph 34, and Case C-261/99 Commission  v France  [2001] ECR I‑2537, paragraph 18). Consequently, the classification in Decision 2003/372 of the persistent non-payment of the various debts of Olympic Airways as State aid cannot be called into question in the context of the present proceedings.
39. As regards the argument of the Hellenic Republic that, as far as the various kinds of payments referred to in Article 2 of Decision 2003/372 are concerned, the decision cannot be implemented because of the absence of precise information about the sums to be recovered, it should be observed that, according to the case-law of the Court, 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, in particular, Case C-480/98 Spain  v Commission [2000] ECR I-8717, paragraph 25).
40. The Commission was therefore able legitimately to 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 amounts to be repaid.
41. It must be added that, according to the settled case-law of the Court, whereby the operative part of a decision on State aid is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see, in particular, Case C-355/95 P TWD  v Commission  [1997] ECR I-2549, paragraph 21), the amounts to be repaid pursuant to Decision 2003/372 can be established by reading Article 2 in conjunction with points 206 to 208 of the grounds thereof.
42. With regard to the argument of the Hellenic Republic that the implementation of Decision 2003/372 has encountered a certain number of national difficulties, it should be observed that, in such a situation, the Commission and the Member State concerned must respect the principle underlying Article 10 EC, which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on State aid (see Case C-348/93 Commission v Italy [1995] ECR I-673, paragraph 17, and Commission v France , cited above, paragraph 24). That has not happened in this case.
43. It must be added that the Hellenic Republic has also not pleaded the absolute impossibility of proceeding with the diligent performance of its obligations under Articles 2 and 3 of Decision 2003/372. It is apparent from the settled case-law of the Court that 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 those difficulties to be overcome (see, in particular, Case 94/87 Commission v Germany  [1989] ECR 175, paragraph 10, and Case C‑499/99 Commission v Spain [2002] ECR I-6031, paragraph 25).
44. Furthermore, it is apparent from the statements of the Hellenic Republic concerning the efforts made by the national authorities to recover the aid referred to in Articles 2 and 3(1) of Decision 2003/372 that the authorities have restricted themselves to a certain number of procedural and administrative steps, partial arrangements for the settlement of debts and offset operations. Those initiatives which, moreover, were late or incomplete or without binding effect and which, in any event, did not result in the actual recovery of the sums owed by Olympic Airways, cannot be regarded as complying with the obligations of Member States in relation to the recovery of State aid.