Commission of the European Communities v French Republic.
Date: 2007-10-18
27. It must be noted, as a preliminary point, that the only defence available to a Member State in opposing an infringement action by the Commission under Article 88(2) EC is to plead that it was absolutely impossible for it to implement the decision in question (see, in particular, Case C-348/93 Commission  v Italy  [1995] ECR I-673, paragraph 16; Case C-261/99 Commission  v France  [2001] ECR I-2537, paragraph 23, and Case C-499/99 Commission  v Spain  [2002] ECR I-6031, paragraph 21).
28. It is also apparent from the case-law of the Court that a Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties, whether of a political, legal or practical kind, or becomes aware of consequences overlooked by the Commission, must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State concerned must work together in good faith with a view to overcoming the difficulties whilst fully observing the provisions of the EC Treaty and in particular those on aid (see Commission  v France , paragraph 24; Case C-378/98 Commission  v Belgium  [2001] ECR I-5107, paragraph 31; and Commission  v Spain , paragraphs 24 and 25).
29. In addition, the Court has held 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 itself, without overmuch difficulty, that amount (see, in particular, Case C-480/98 Spain  v Commission  [2000] ECR I-8717, paragraph 25, and Case C-415/03 Commission  v Greece  [2005] ECR I-3875, paragraph 39).
31. As regards the argument that the Commission reserved to itself competence to determine the amount of aid to be recovered from the recipient, it must be recalled that the decision in question states, in paragraph 59 of its grounds, that this amount must be between EUR 798 million and EUR 1 140 million in capital.
32. It is apparent from paragraph 54 of the grounds of the decision in question that the Commission set the latter amount following a letter from the French authorities of 15 May 2003 concerning the undertaxation of FT between 1994 and 2002 under the business tax scheme. According to paragraph 58 of those grounds, the first amount was taken from a fax from the French authorities of 16 July 2004. The table in paragraph 58 shows that those two amounts were, moreover, divided into annual amounts for the period covering the years 1994 to 2002.
33. It follows that the amount of EUR 798 million must be considered to be the minimum aid amount to be recovered in accordance with Article 2 of the decision in question. The operative part of a decision relating to 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).
34. It is indeed uncontested that, in paragraph 59 of the grounds of the decision in question, the Commission had in fact stated that the exact amount of aid to be recovered would be determined by it. However, it also stated in the same paragraph that that amount would be determi ned in collaboration with the French authorities, within the framework of the recovery procedure, at the latest by 1 November 2004. Implementation of the recovery procedure did not therefore depend on fixing the said amount. Therefore, the fact that the exact amount of aid to be recovered had not been laid down definitively did not prevent the authorities from implementing the recovery procedure for the minimum amount of aid or from cooperating effectively in determining the final amount of the aid to be recovered.
35. In those circumstances, the argument of the French Republic that the amounts set out in paragraph 59 of the grounds of the decision in question are only indicative and do not have any binding legal force cannot be upheld either.
36. As regards the argument that the Commission did not provide a reliable calculation method with which to determine the amount of aid to be repaid, it must be pointed out that the difference between the tax actually paid by FT and that to which it would have been liable under the ordinary rules governing business tax has been the subject of detailed analyses since the opening of the investigation procedure provided for in Article 88(2) EC.
37. In the context of that procedure, the Commission developed the parameters that would allow the French authorities to make a definitive proposal concerning the amount of aid to be repaid.
38. The information needed in this respect was, inter alia, provided by the Commission in paragraphs 25 to 38, 60 to 67, and 72 to 80 of the decision of 31 January 2003 opening the formal investigation procedure and, in particular, in paragraphs 34 to 44 of the grounds of the decision in question.
39. The national authorities accordingly had the information enabling them to propose to the Commission an exact amount reflecting the undertaxation which FT enjoyed between 1994 and 2002. The national authorities are in fact in the best position, not only to determine the appropriate means to recover the State aid unduly paid, but also to determine the exact amounts to be repaid (see, to that effect, Commission  v Belgium , paragraphs 50 and 51).
40. The Commission’s decision does contain the appropriate information to enable the French Republic to determine itself, without too much difficulty, the final aid amount to be recovered, and that amount would have to be somewhere within the range established by the Commission.
42. Finally, as regards the argument of that Member State that it is impossible to determine with certainty the amount of aid to be recovered, it must be recalled that, in situations involving the recovery of amounts of aid from a large number of undertakings in conjunction with numerous individual calculation parameters, the Court has held that such difficulties in implementing the relevant decisions did not constitute an absolute impossibility, within the meaning of the case-law cited (see, in particular, Case C-280/95 Commission  v Italy [1998] ECR I-259, paragraphs 18 and 23, and Commission  v Belgium , paragraphs 41 and 42). The documents before the Court do not show that the problems arising, in the present case, in calculating the amount of aid to be recovered are greater than those encountered in the situations that gave rise to the judgments cited above.
43. It must also be pointed out that apprehension of internal difficulties in the course of implementing a decision on State aid cannot justify a failure by a Member State to comply with its obligations under Community law (see, to that effect, Case C-52/95 Commission  v France  [1995] ECR I-4443, paragraph 38; Case C‑265/95 Commission  v France  [1997] ECR I-6959, paragraph 55, and Case C-280/95 Commission  v Italy , paragraph 16).
45. It should be borne in mind, first of all, that Article 10 EC requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty (see Case C-433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 63).