Commission of the European Communities v French Republic.
Date: 2001-03-22
18 It must first be borne in mind that the system of remedies set up by the Treaty distinguishes between actions under Articles 226 and 227 EC, which are directed to obtaining a declaration that a Member State has failed to fulfil its obligations, and those under Articles 230 EC and 232 EC, which are directed to obtaining judicial review of measures adopted by the Community institutions or of failure on their part to act. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision (see, most recently, Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraph 34). It is immaterial whether such unlawfulness is pleaded in the action brought against the Member State or, as in this case, in an action for annulment of the decision at issue (Case C-17/99).
19 The position could be different only if the measure in question contained particularly serious and manifest defects such that it could be deemed non-existent (Commission v Portugal, cited above, paragraph 35).
20 That also applies to an action for failure to fulfil obligations based on the second subparagraph of Article 88(2) EC (Commission v Portugal, cited above, paragraph 36).
22 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16, and Commission v Portugal, cited above, paragraph 38).
23 The Court has also held that the only defence available to a Member State in opposing an application by the Commission under Article 93(2) of the Treaty for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it to implement the decision properly (Case C-348/93 Commission v Italy [1995] ECR I-673, paragraph 16, and Commission v Portugal, cited above, paragraph 39).
24 Furthermore, where a Member State, when implementing a Commission decision relating to State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences not contemplated by the Commission, it must submit those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question. In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the EC Treaty (now Article 10 EC), which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid (see, in particular, Case 94/87 Commission v Germany [1989] ECR 175, paragraph 9, and Commission v Portugal, cited above, paragraph 40).
26 Finally, it must be borne in mind that the decision at issue is presumed to be lawful and that, despite the existence of the action for annulment, it remains binding in all respects on the French Republic (Commission v Portugal, cited above, paragraph 57).