European Commission v Kingdom of Spain.
Date: 2014-05-13
20. By virtue of Article 21 of the Statute of the Court of Justice of the European Union and Article 38(1) of the Court’s Rules of Procedure, in the version in force at the date of commencement of the Commission’s action, the Commission must, in any application made under Article 260 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see, by analogy, Case C‑52/90 Commission  v Denmark  EU:C:1992:151, paragraph 17, and Case C‑281/11 Commission  v Poland  EU:C:2013:855, paragraph 53).
22. With regard more particularly to the lack of details in the application as regards the breakdown of the amount of unrecovered aid, it must be borne in mind that, where compliance with decisions relating to aid schemes is concerned, it is for the authorities of the Member State involved to verify the individual situation of each undertaking concerned (see, to that effect, Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ and Others  v Commission  EU:C:2011:368, paragraphs 63, 64 and 121, and Case C‑613/11 Commission  v Italy  EU:C:2013:192, paragraph 40), given that those authorities are in the best position to determine the exact amounts to be repaid (Case C‑441/06 Commission  v France EU:C:2007:616, paragraph 39). It follows therefrom that the Commission may, during an aid recovery proceeding, merely insist that the obligation to repay the amounts of aid at issue be fulfilled and leave the national authorities to calculate the exact amount of the sums to be recovered (see, to that effect, Case C‑369/07 Commission  v Greece  EU:C:2009:428, paragraph 49).
34. In that regard, it must be borne in mind that, in accordance with the settled case-law of the Court concerning Article 228(2) EC, the reference date for the assessment of whether there has been a failure to fulfil obligations under that provision is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission  v France EU:C:2005:444, paragraph 30, and Commission  v Greece EU:C:2009:428, paragraph 43).
35. Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purpose of Article 260 TFEU is the date of expiry of the period prescribed in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) (Case C‑610/10 Commission  v Spain  EU:C:2012:781, paragraph 67, and Case C‑576/11 Commission  v Luxembourg  EU:C:2013:773, paragraph 29).
36. Nevertheless, where the proceedings for failure to fulfil obligations have been brought on the basis of Article 228(2) EC and a reasoned opinion has been issued before the date of entry into force of the Treaty of Lisbon, namely 1 December 2009, the reference date is the date of expiry of the period prescribed in the reasoned opinion (see, to that effect, Case C‑533/11 Commission  v Belgium EU:C:2013:659, paragraph 32).
43. In that regard, it must be pointed out that the allocation of internal central and regional powers cannot have any bearing on the application of Article 260 TFEU, since the Member State concerned is responsible towards the European Union for compliance with obligations arising under EU law (see, to that effect, Commission  v Spain , EU:C:2012:781, paragraph 132).
58. As a preliminary point, it must be borne in mind that it is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the financial penalties appropriate, such as an order for payment of a lump sum, in particular for preventing similar infringements of EU law from recurring (Case C‑121/07 Commission  v France EU:C:2008:695, paragraph 59, and Case C‑279/11 Commission  v Ireland EU:C:2012:834, paragraph 66).
59. An order to pay a lump sum is based essentially on the assessment of the effects on public and private interests of the failure of the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period after the judgment initially establishing it was delivered ( Commission  v France  EU:C:2008:695, paragraph 58, and Case C‑241/11 Commission  v Czech Republic  EU:C:2013:423, paragraph 40).
60. The imposition of a lump sum payment must depend in each individual case on all the relevant factors relating both to the characteristics of the infringement established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. In that respect, that provision confers a wide discretion on the Court in deciding whether or not to impose such a penalty (see, to that effect, Commission  v Spain EU:C:2012:781, paragraph 141, and Commission  v Luxembourg  EU:C:2013:773, paragraphs 58 and 59).
61. Accordingly, the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference. Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by that institution is transparent, foreseeable and consistent with legal certainty (Case C‑70/06 Commission  v Portugal  EU:C:2008:3, paragraph 34, and Commission  v Greece  EU:C:2009:428, paragraph 112).
64. It is settled case-law that the Member State concerned must actually recover the sums owed, belated recovery after the prescribed time-limits have expired not satisfying the requirements of the EC Treaty (see, to that effect, Case C‑496/09 Commission  v Italy  EU:C:2011:740, paragraph 86 and the case-law cited).
66. Although it is true that some of the problems referred to by that Member State during the recovery procedure of the unlawful aid at issue were of an unprecedented nature, it follows from the established case-law of the Court that if, in giving effect to a decision of the Commission in State aid matters, a Member State encounters unforeseen or unforeseeable difficulties or perceives consequences overlooked by the Commission, it must submit those problems for consideration by the Commission together with proposals for suitable amendments to the decision in question (Case C‑354/10 Commission  v Greece  EU:C:2012:109, paragraph 70, and Case C‑411/12 Commission  v Italy EU:C:2013:832, paragraph 38).
69. As regards, secondly, the seriousness of the infringement, the vital nature of the rules of the EC Treaty on State aid must be borne in mind ( Commission  v Greece EU:C:2009:428, paragraph 118, and Commission  v Spain EU:C:2012:781, paragraph 125).
70. The rules governing the contested decision and the judgment in Commission  v Spain  EU:C:2006:777 are the expression of one of the essential tasks with which the European Union is entrusted under Article 2 EC, namely the establishment of a common market, and under Article 3(1)(g) EC, which provides that the activities of the Community are to include a system ensuring that competition in the internal market is not distorted (see, to that effect, Commission  v Greece EU:C:2009:428, paragraph 119).
71. The importance of the EU rules infringed in a case such as this is reflected, in particular, in the fact that repayment of aid declared unlawful and incompatible with the internal market eliminates the distortion of competition caused by the competitive advantage afforded by the aid and that, by repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market (see, to that effect, Commission  v Spain EU:C:2012:781, paragraph 127).
72. In that regard, the fact, referred to by the Kingdom of Spain, that the contested decisions constitute the first case in which the Commission has exercised its powers in the field of State aid as regards the direct taxation of undertakings, assuming it to be proven, is not, in any event, such as to reduce the interest in the recovery of the unlawful aid at issue following the classification in the contested decisions of the schemes under which it was granted.
73. In the present case, the unlawful aid in question is particularly harmful to competition because of its large amount and the unusually large number of recipients regardless of the economic sector of the recipients (see, by analogy, Commission  v Italy EU:C:2011:740, paragraph 63).
78. Where a Member State repeatedly engages in unlawful conduct in such a manner in a specific sector governed by EU rules, this may be an indication that effective prevention of future repetition of similar infringements of EU law may require the adoption of a dissuasive measure, such as a lump sum payment ( Commission  v France  EU:C:2008:695, paragraph 69 and Commission  v Ireland  EU:C:2012:834, paragraph 70).
80. As regards the amount of that lump sum, account must be taken, in addition to the considerations set out in paragraphs 63 to 78 of the present judgment, of the capacity to pay of the Kingdom of Spain (see, to that effect, Commission  v Spain EU:C:2012:781, paragraph 131).