European Commission v Slovak Republic.
Date: 2010-12-22
42. Recovery of unlawful aid is the logical consequence of the finding that it is unlawful and that consequence cannot depend on the form in which the aid was granted (see, in particular, Case C‑183/91 Commission  v Greece  [1993] ECR I‑3131, paragraph 16, and Commission  v Portugal , paragraph 38).
43. Where a decision is taken declaring aid to be unlawful, the recovery of that aid, ordered by the Commission, takes place according to the conditions provided for in Article 14(3) of Regulation No 659/1999. The only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its obligations is to plead that it was absolutely impossible for it properly to implement the decision (see Case C‑214/07 Commission  v France  [2008] ECR I‑8357, paragraphs 43 and 44 and case‑law cited).
44. In the event of difficulties in implementation, the Commission and the Member State must, pursuant to the rule imposing on the Member States and the European Union institutions reciprocal duties of genuine cooperation, which underlies, in particular, Article 4(3) TEU, work together in good faith with a view to overcoming those difficulties whilst fully observing the Treaty provisions, in particular the provisions on State aid (see, to that effect, Case C‑214/07 Commission  v France , paragraph 45 and case-law cited).
48. It must be observed that such an interpretation of the wording of Decision 2007/254 quite obviously disregards the true scope of that decision. In the context of European Union legislation, and with particular regard to Recital 13 and Article 14(3) of Regulation No 659/1999, it is plain, as maintained by the Commission, that the purpose of Decision 2007/254 is the restoration of effective competition and that the decision therefore requires the Member State to which it is addressed actually to obtain, without delay, repayment of the wrongful State aid. Consequently, the Slovak Republic’s literal interpretation of the wording of Decision 2007/254 cannot be accepted.
51. Accordingly, a Member State which, pursuant to a Commission decision, is obliged to recover unlawful aid is free to choose the means of fulfilling that obligation, provided that the measures chosen do not adversely affect the scope and effectiveness of European Union law (see, to that effect, Case C‑209/00 Commission  v Germany  [2002] ECR I‑11695, paragraph 34, and Case C‑210/09 Scott and Kimberly Clark  [2010] ECR I‑0000, paragraph 21).
56. In that regard, it must, first, be stated that the situation at issue here is distinguishable from that in Lucchini , relied on by the Commission, where the Court held that European Union law precludes the application of a provision of national law which seeks to lay down the principle of res judicata  in so far as the application of that provision prevents the recovery of State aid granted in breach of European Union law which has been found to be incompatible with the common market in a decision of the Commission which has become final (see, to that effect, paragraph 63 of Lucchini ).
59. Secondly, attention should be drawn to the importance, both in the European Union legal order and in the national legal orders, of the principle of res judicata . In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time‑limits provided to exercise those rights can no longer be called into question (Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraph 38; Case C‑234/04 Kapferer  [2006] ECR I‑2585, paragraph 20; and Case C‑2/08 Fallimento Olimpiclub  [2009] ECR I‑7501, paragraph 22).
60. Accordingly, European Union law does not in all circumstances require a national court to disapply domestic rules of procedure conferring the force of res judicata  on a judgment, even if to do so would make it possible to remedy an infringement of European Union law by the judgment in question (see, to that effect, Kapferer , paragraph 21, and Fallimento Olimpiclub , paragraph 23).