Commission of the European Communities v French Republic.
Date: 2006-10-05
32. According to settled case‑law, the reference date for the application of the second subparagraph of Article 88(2) EC is that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission (see, to that effect, Case C‑378/98 Commission v Belgium  [2001] ECR I‑5107, paragraph 26; Case C‑499/99 Commission v Spain  [2002] ECR I‑6031, paragraph 28, and judgment of 1 June 2006 in Case C‑207/05 Commission v Italy , not published in the ECR, paragraph 31).
42. According to the case‑law the Member State to which a decision requiring recovery of illegal aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision (see Case C‑209/00 Commission v Germany  [2002] ECR I‑11695, paragraph 31, and Case C‑404/00 Commission v Spain  [2003] ECR I-6695, paragraph 21). This must result in the actual recovery of the sums owed (see, to that effect, Case C‑415/03 Commission v Greece  [2005] ECR I‑3875, paragraph 44, and Commission v Italy , cited above, paragraphs 36 and 37).
43. Article 14(3) of Regulation No 659/1999 states that the recovery of aid which has been declared incompatible must be effected ‘without delay’.
47. Consequently, the beneficiary of the aid is able, during that period, to keep funds deriving from the aid declared incompatible and to benefit from the resulting unfair competitive advantage.
49. It should be borne in mind in this respect that, under Article 14(3) of Regulation No 659/1999, 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 previously by case‑law (see Case 94/87 Commission v Germany  [1989] ECR I‑175, paragraph 12; Case C‑24/95 Alcan Deutschland  [1997] ECR I‑1591, paragraph 24, and Commission v Germany , cited above, paragraphs 32 to 34).
50. The 13th recital in the preamble to that regulation states that, in cases of unlawful aid which is not compatible with the common market, effective competition should be restored and for this purpose it is necessary that the aid be recovered without delay. The application of national procedures should not therefore impede the restoration of effective competition by preventing the immediate and effective execution of the Commission’s decision. To achieve this result, Member States should take all necessary measures ensuring the effectiveness of that decision.
53. It follows that the procedure provided for by national law in the present case does not fulfil the conditions laid down in Article 14(3) of Regulation No 659/1999. The French rule providing for the suspensory effect of actions brought against demands for payment should therefore have been left unapplied.
57. Since the European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts (see, to that effect, Case C‑50/00 P Unión de Pequeños Agricultores v Council  [2002] ECR I‑6677, paragraphs 38 and 40).
58. It is apparent from the case‑law that the recipient of aid which has been declared incompatible has the right to bring an action for annulment under the second paragraph of Article 230 EC even if the decision is addressed to a Member State (see, to that effect, Case 730/79 Philip Morris v Commission  [1980] ECR 2671 and Case C‑188/92 TWD Textilwerke Deggendorf  [1994] ECR I‑833, paragraph 14).
59. On the other hand, it is not possible for a recipient of aid which has been declared incompatible, who could have challenged the Commission’s decision, to call in question the decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision. To accept that in such circumstances the person concerned could challenge the implementation of the Community decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action laid down in the fifth paragraph of Article 230 EC has expired (see, to that effect, TWD Textilwerke Deggendorf , paragraphs 17 and 18, and Case C‑239/99 Nachi Europe  [2001] ECR I‑1197, paragraph 37).
60. It follows that the Commission’s decision concerning the recovery of sums owed cannot be called in question before a national court. That question is reserved for the Court of First Instance of the European Communities, which will resolve it in an action for annulment brought before it. It is apparent from Article 242 EC that, in the absence of a decision of the Court of First Instance to the contrary, such an action does not have suspensory effect.