European Commission v Kingdom of Belgium.
Date: 2017-09-13
38


In that regard, it should be noted that, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, the only defences available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU are to plead that it was absolutely impossible for it to implement the decision of which it was the addressee (see judgment of 9 July 2015, Commission v France, C‑63/14, EU:C:2015:458, paragraph 48 and the case-law cited) or that the recovery decision is non-existent, assuming that the decision contains particularly serious and manifest defects (see to that effect, inter alia, judgments of 10 October 2013, Commission v Italy, C‑353/12, not published, EU:C:2013:651, paragraph 43, and of 22 March 2001, Commission v France, C‑261/99, EU:C:2001:179, paragraph 19).
39


As regards the argument to the effect that the financing of the BSE tests was wrongly classified as State aid, it is sufficient to state that this argument is in fact tantamount to contesting the very existence of State aid and, consequently, the validity of the decision at issue, without, however, going so far as to contend that the decision at issue is non-existent. Thus, this argument can be relied upon only in the procedural context of an action for annulment, as provided for in Article 263 TFEU (see, to that effect, judgment of 12 February 2015, Commission v France, C‑37/14, not published, EU:C:2015:90, paragraph 77 and the case-law cited).
44


As for the argument concerning difficulties connected with identifying the actual beneficiaries of the aid at issue, put forward in the event that the obligation to recover the aid does not relate only to farmers, it should be noted that apprehension of even insuperable internal difficulties, relating inter alia to verification of the situation of each undertaking concerned for the purposes of recovering the unlawful aid or to the wide reach of the aid scheme across the fabric of national production industry, cannot justify a failure by a Member State to fulfil its obligations under EU law (see, to that effect, judgment of 1 April 2004, Commission v Italy, C‑99/02, EU:C:2004:207, paragraphs 22 and 23 and the case-law cited).
46


As regards the argument to the effect that the de minimis thresholds were not exceeded, it should be recalled that, in order to determine the beneficiary of State aid, it is necessary to identify the undertakings which actually enjoyed the benefit of it (judgments of 3 July 2003, Belgium v Commission, C‑457/00, EU:C:2003:387, paragraph 55, and of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 90 and the case-law cited). That case-law precludes calculating the amount of the aid to be recovered by dividing the overall amount of the aid in equal shares between the economic sectors designated by the decision at issue, as the Kingdom of Belgium proposes in order to demonstrate that the de minimis thresholds were not exceeded.
47


Moreover, according to the Court’s case-law, whilst it is incumbent upon the Commission to prove the allegation that the obligation of recovery has not been fulfilled, by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, and, in so doing, the Commission may not rely on any presumption, it is incumbent, on the other hand, upon the Member State concerned, where failure to recover some or all of the aid at issue has been established, to substantiate the reasons why recovery is not required so far as concerns certain beneficiaries (judgment of 12 February 2015, Commission v France, C‑37/14, not published, EU:C:2015:90, paragraph 71). Apart from the method of calculation, ruled out by the case-law cited in the previous paragraph, the Belgian Government does not provide any specific and concrete data justifying the conclusion that the de minimis thresholds are complied with in respect of the beneficiaries concerned.