European Commission v French Republic.
Date: 2015-07-09
44. The Court has consistently held that recovery of illegal aid is the logical consequence of a finding that it is illegal. The decision requiring a Member State to recover illegal aid, adopted on the basis of Article 108(2) TFEU, is presumed to be lawful and, despite the existence of the action for annulment under Article 263 TFEU, remains binding in all respects on the addressee (see, to that effect, judgment in Commission  v France , C-261/99, EU:C:2001:179, paragraphs 22 and 26 and the case-law cited). Therefore, the Member State which is the addressee of such a decision is required, pursuant to Article 288, fourth paragraph, TFEU, to take account of all the measures appropriate to ensure its implementation.
45. In accordance with Article 14(3) of Regulation No 659/1999, the recovery of aid must be carried out without delay or, if necessary, within the period laid down in the decision ordering its recovery. Delayed recovery, after the periods prescribed, cannot satisfy the requirements of the FEU Treaty (see, to that effect, judgment in Commission v Italy , C‑353/12, EU:C:2013:651, paragraphs 31 and 32 and the case-law cited).
46. In the present case, it is not disputed that, on the expiry of the period prescribed by the decision at issue, that is 3 September 2013, the French Republic had failed to take the measures necessary to recover the illegal aid. It is only on 7 and 19 November 2014 that that Member State issued two recovery orders against SNCM in the amount of EUR 198 million, which is less than that indicated by the Commission, that is to say EUR 220.224 million, without any actual recovery of the illegal aid being made. The issue of those recovery orders alone cannot be regarded as recovery of the illegal aid (see, to that effect, judgment in Commission  v Slovakia , C‑507/08, EU:C:2010:802, paragraph 48).
47. The action for annulment brought by the French Republic and SNCM against the decision at issue has no effect on the present proceedings. As appears from Article 278 TFEU, in the absence of a decision of the General Court to the contrary, such an action does not have suspensory effect (see judgment in Commission  v France , C‑232/05, EU:C:2005:651, paragraph 60). Since the action for suspension of operation of the decision at issue brought by the French Republic was rejected on appeal by the Court of Justice, bringing an action for annulment by that Member State does not alter the enforceable nature of the decision at issue.
48. According to settled case-law, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, 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 of which it was an addressee (see to that effect, judgment in Commission  v Germany , C‑527/12, EU:C:2014:2193, paragraph 48 and the case-law cited).
49. The condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see judgments in Commission  v Greece , C‑415/03, EU:C:2005:287, paragraph 43; Commission  v Poland , C‑331/09, EU:C:2011:250, paragraph 70; Commission  v Italy , C‑305/09, EU:C:2011:274, paragraph 33, and Commission v Italy , C‑243/10, EU:C:2012:182, paragraph 41).
52. As regards the possible outbreak of social unrest which might jeopardise public order, the Court has consistently held, as the Advocate General noted in paragraph 86 of his Opinion, that where such unrest is threatened, it is for the Member State to adopt all appropriate measures to guarantee the full scope and effect of EU law so as to ensure its proper implementation in the interests of all economic operators, concerned unless it can show that action on its part would have consequences for public order with which it could not cope by using the means at its disposal (see to that effect, judgment in Commission  v France , C‑265/95, EU:C:1997:595, paragraphs 56 and 57).
62. The French Republic having failed to take the measures necessary to cancel future aid payments and to recover the amounts of aid already paid within the periods prescribed, it also failed to fulfil its obligation, set out in Article 5 of the decision at issue, to inform the Commission of the measures taken within two months of the notification of the decision at issue.