European Commission v Federal Republic of Germany.
Date: 2014-09-11
38. The first sentence of Article 14(3) of Regulation No 659/1999 states that recovery is to be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect, the Member States concerned must, in accordance with the last sentence of Article 14(3) of that regulation, take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to EU law.
39. Although Article 14(3) of Regulation No 659/1999 reflects the requirements of the principle of effectiveness (judgment in Scott and Kimberly Clark , C‑210/09, EU:C:2010:294, paragraph 20), it is also apparent that the law of the Member State concerned must, for the purposes of that recovery, be applied in accordance with the principle of the procedural autonomy of that Member State, in the absence of applicable provisions of EU law, while at the same time ensuring that fundamental rights are observed, in particular the right to a fair hearing, including the rights of defence. It follows that EU law does not require the recovery of unlawful aid from the beneficiary by the competent national authority to be effected on the basis of the Commission’s recovery decision alone.
40. The Member State concerned is free to choose the means of fulfilling its obligation to recover aid found to be incompatible with the internal market, provided that the measures chosen do not adversely affect the scope and effectiveness of Union law (judgment in Scott and Kimberly Clark , EU:C:2010:294, paragraph 21 and the case-law cited).
41. So far as concerns the freedom of the Member States with regard to the choice of method of recovery of such aid, the Court has stated that that freedom is limited in so far as those rules and procedures cannot have the effect of making the recovery required by EU law practically impossible (see, to that effect, judgment in Mediaset , C‑69/13, EU:C:2014:71, paragraph 34 and the case-law cited). The application of national procedures is subject to the condition that those procedures allow the immediate and effective execution of the Commission’s decision, a condition which reflects the requirements of the principle of effectiveness laid down by case-law of the Court (judgment in Commission  v Italy , C‑243/10, EU:C:2012:182, paragraph 36 and the case-law cited).
42. The measures adopted by the Member States must be appropriate for the purpose of establishing the normal conditions of competition which were distorted by the grant of the unlawful aid the recovery of which has been ordered by a Commission decision (judgment in Scott and Kimberly Clark , EU:C:2010:294, paragraph 22 and the case-law cited).
45. In that regard, it must be stated at the outset that review by the national court of an enforceable order for the recovery of unlawful State aid and possible annulment of that order must be viewed simply as an expression of the principle of effective judicial protection which, according to the Court’s settled case-law, is a general principle of Union law (see, to that effect, judgment in Scott and Kimberly Clark , EU:C:2010:294, paragraph 25 and the case-law cited).
48. As for possible justification for the significant delay, the Court has held that the only defence available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU is to plead that it was absolutely impossible for it to implement the decision in question (judgments in Commission  v Germany , 94/87, EU:C:1989:46, paragraph 8, and Commission  v France , C‑441/06, EU:C:2007:616, paragraph 27 and the case-law cited).
51. It should be borne in mind, in the first place, that, in accordance with the case-law of the Court, if a Member State encounters difficulties in implementing a Commission decision ordering the recovery of aid, it must submit those problems for consideration by the Commission asking, in a reasoned manner, for the extension of the prescribed period and suggesting appropriate amendments to that decision, so that the Commission may take an informed decision. In such a case, and in the light of Article 4(3) TEU, a duty of cooperation in good faith is imposed on the Member State concerned and the Commission with a view to overcoming those difficulties (see, to that effect, judgments in Commission  v Germany , EU:C:1989:46, paragraph 9; Commission  v Italy , EU:C:2012:182, paragraphs 41 and 42; and Commission  v Greece , C‑263/12, EU:C:2013:673, paragraph 32).
55. As for the Commission’s argument concerning German law, it must be observed that the defendant has not claimed that the action taken was the only action envisageable in order to recover the aid in question and that there were no other measures to allow recovery within the period set in Article 3(2) of the decision at issue. In the event that civil law rules do not allow for the effective recovery of the aid in question, it may be necessary, in view of the circumstances of the case, for national rules to be left unapplied (see, to that effect, judgment in Commission  v France , C‑232/05, EU:C:2006:651, paragraph 53) and to have recourse to other measures, since such measures cannot be excluded on grounds relating to national law.
56. In the last place, it should be noted that, in accordance with the case-law of the Court relating to the application of the EU rules on State aid, Article 4(3) TEU also imposes an obligation of cooperation in good faith between the national courts, on the one hand, and the Commission and the European Union Courts, on the other, in the context of which national courts must take all the necessary measures, whether general or specific, to ensure fulfilment of the obligations under EU law and refrain from those which may jeopardise the attainment of the objectives of the Treaty (see, to that effect, judgment in Mediaset , EU:C:2014:71, paragraph 29 and the case-law cited).
60. It must be observed that Article 288 TFEU, on which the Commission also bases its action, is a general provision whereas State aid is specifically governed by Article 108 TFEU and by Regulation No 659/1999 laying down detailed rules for the application of that article. There are therefore no grounds for holding that there has also been a failure to fulfil obligations under Article 288 TFEU. The same holds for the principle of effectiveness which forms part of Article 14 of that regulation.