Kingdom of Belgium v Commission of the European Communities.
Date: 1990-03-21
8 In the decision, the Commission reaches the conclusion that the aid in question is illegal because the procedure in Article 93(3 ) was not complied with . In substantive terms, it is also incompatible with the common market under Article 92(1 ) and does not fall within any of the exceptions provided for in Article 92(3 ). On those two grounds, the Commission ordered the Belgian State to recover the aid, allowing the latter a period of two months to notify it of the measures taken .
15 Once it has established that aid has been granted or altered without notification, the Commission has the power, after giving the Member State in question an opportunity to submit its comments on the matter, to issue an interim decision requiring it to suspend immediately the payment of such aid pending the outcome of the examination of the aid and to provide the Commission, within such period as it may specify, with all such documentation, information and data as are necessary to enable it to examine the compatibility of the aid with the common market .
18 If the Member State, notwithstanding the Commission' s order, fails to provide the information requested, the Commission is empowered to terminate the procedure and to decide, on the basis of the information available to it, whether or not the aid is compatible with the common market . If appropriate, such a decision may call for recovery of the amount of aid which has already been paid .
25 It should be pointed out that, according to settled case-law, investment by the public authorities in the capital of undertakings, in whatever form, may constitute State aid where the conditions set out in Article 92 are fulfilled ( see the judgments of 14 November 1984 in Case 323/82 Intermills v Commission (( 1984 )) ECR 3809, and of 13 March 1985 in Joined Cases 296 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission (( 1985 )) ECR 809 ).
26 In order to determine whether such measures are in the nature of State aid, the relevant criterion is that indicated in the Commission' s decision, and not contested by the Belgian Government, namely whether the undertaking could have obtained the amounts in question on the capital market .
43 That argument cannot be accepted . According to the judgments of 17 September 1980 in Case 730/79 Philip Morris v Commission (( 1980 )) ECR 2671 and of 11 November 1987 in Case 259/85 France v Commission (( 1987 )) ECR 4393, the relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that intra-Community trade might be affected .
46 It should be pointed out in that regard that, as the Court has already decided on numerous occasions, in particular in its abovementioned judgments of 10 July 1986 in Case 234/84 Belgium v Commission (( 1986 )) ECR 2263 and of 11 November 1987, observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of specific rules .
47 In the abovementioned judgments, the Court held that that principle required that the Member State in question must be given the opportunity effectively to make known its views on the observations which interested third parties have submitted under Article 93(2 ) and on which the Commission proposes to base its decision; and it also stated that, in so far as the Member State has not been afforded the opportunity to comment on those observations, the Commission may not use them in its decision against that State .
48 For such an infringement of the right to be heard to result in an annulment it must, however, be established that, had it not been for that irregularity, the outcome of the procedure might have been different . The observations in question, lodged with the Court at the Court' s request, contain no information in addition to that which the Commission already possessed and of which the Belgian Government was already aware . Under those circumstances, the fact that the Belgian Government had no opportunity to comment on those observations was not of such a nature as to influence the result of the administrative procedure . This submission must therefore be rejected .
The submission based on the fact that, at the time at which the contested decision was adopted, Tubemeuse was subject to judicial composition proceedings involving relinquishment of its assets
60 It should be noted that the Belgian Government' s argument is based on the premiss that the contested decision orders the recovery of the aid in question on a privileged basis . However, the contested decision confines itself to ordering recovery of the aid, without prescribing the way in which that is be done .
61 In principle the recovery of aid unlawfully paid must take place in accordance with the relevant procedural provisions of national law, subject however to the proviso that those provisions are to be applied in such a way that the recovery required by Community law is not rendered practically impossible ( see the judgment of 2 February 1989 in Case 94/87 Commission v Federal Republic of Germany (( 1989 )) ECR 175 ).
62 Moreover, that is the reason why the Commission stated at the hearing that the Belgian Government had fulfilled its obligations under the contested measure in regard to the recovery of the aid since, after the dismissal of its application for interim measures by the President of the Court, the Belgian Government sought to have its debt registered as one of Tubemeuse' s unsecured liabilities and lodged an appeal against the judgment rejecting that application .
63 It should be added that any procedural or other difficulties in regard to the implementation of the contested measure cannot have any influence on the lawfulness of the measure .
64 Consequently, the submission must be rejected .
66 It should be pointed out in that regard that it follows from the Court' s previous decisions ( see, for example, the judgment of 24 February 1987 in Case 310/85 Deufil v Commission (( 1987 )) ECR 901 ) that recovery of unlawful aid is the logical consequence of the finding that it is unlawful . Consequently, the recovery of State aid unlawfully granted for the purpose of re-establishing the previously existing situation cannot in principle be regarded as disproportionate to the objectives of the Treaty in regard to State aids .