European Commission v Italian Republic.
Date: 2011-05-05
26. It is settled case-law that the Member State to which a decision requiring recovery of unlawful aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision (see Case C‑232/05 Commission  v France  [2006] ECR I‑10071, paragraph 42 and the case-law cited).
27. The Member State must actually recover the sums owed (see Commission  v France , paragraph 42, and Case C-304/09 Commission  v Italy  [2010] ECR I-0000, paragraph 32). Recovery out of time, after the deadlines set, cannot satisfy the requirements of the Treaty ( Commission  v Italy , paragraph 32 and the case-law cited).
32. As regards the arguments submitted by the Italian Republic in its defence, it should be noted that, according to settled case-law, the only defence available to a Member State in infringement proceedings brought by the Commission under Article 88(2) EC is to plead that it was absolutely impossible for it properly to implement the decision at issue (see, in particular, Case C‑177/06 Commission  v Spain  [2007] ECR I-7689, paragraph 46; Case C‑214/07 Commission  v France  [2008] ECR I‑8357, paragraph 44; and Commission v Italy , paragraph 35).
33. 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 steps 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, in particular, Joined Cases C‑485/03 to C‑490/03 Commission  v Spain  [2006] ECR I‑11887, paragraph 74; Commission  v France , paragraph 46; and Commission v Italy , paragraph 36).
34. The Court has also held that a Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision at issue. In such a case, the Member State and the Commission must respect the principle underlying Article 10 EC, which imposes a duty of genuine cooperation on the Member States and on the EU institutions, who must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on State aid ( Commission  v Italy , paragraph 37 and the case-law cited).
37. In particular, the Italian Republic’s argument alleging difficulties connected with the need to calculate the amounts due and to exclude from the recovery in question small- and medium-sized enterprises for which the aid should be regarded as compatible with the common market cannot be accepted. The fact that the Member State in question finds it necessary to verify the individual situation of each company concerned, to conduct a screening to identify persons in receipt of benefits covered by the Commission’s decision, cannot justify non‑implementation of that decision (see Case C-99/02 Commission  v Italy  [2004] ECR I‑3353, paragraph 23, and Case C-207/05 Commission v Italy , paragraphs 46 and 50).
38. It is true that, during the recovery process, the Italian legislature had taken serious action with a view to ensuring the effectiveness of that recovery by adopting, first of all, Law No 29/2006 and, then, Decree-Law No 59/2008. In particular, the court file shows that that law provided for the cessation of the aid scheme and the procedures for identifying, determining and recovering the aid unlawfully received. However, to expedite the resolution of the litigation already pending, that decree-law was intended to resolve the procedural problem caused by the orders suspending recovery of the aid made by the national courts.
39. However, the adoption of the measures mentioned in the preceding paragraph failed to remedy the delay in the recovery of the aid covered by Decision 2005/919. Indeed, they entered into force after the time-limits laid down by that decision had expired and their operation was obviously ineffective, since several years after the notification of Decision 2005/919, up to the date the present action was brought, and after the expiry of all the time-limits prescribed by that decision, some of the unlawful aid had not been recovered by the Italian Republic.
40. It should be noted that, where legislative steps intended to ensure the implementation by national courts of a Commission decision requiring a Member State to recover unlawful aid are taken too late or prove ineffective, they do not meet the requirements under the case-law referred to in paragraphs 26 and 27 of the present judgment (Case C‑304/09 Commission v Italy , paragraph 42).
46. In that regard, it is important to note that although the review by a national court of the formal legality of a national measure seeking the recovery of unlawful State aid must be viewed simply as an expression of the general principle of EU law of effective judicial protection, national courts are required, under Article 14(3) of Regulation No 659/1999, to ensure that the decision ordering the recovery of the unlawful aid is fully effective and achieves an outcome consistent with the objective pursued by that decision (see Case C‑210/09 Scott and Kimberly Clark  [2010] ECR I–0000, paragraphs 25 and 29).
47. In fact, annulment of a national measure implementing a Commission decision ordering recovery of unlawful aid, which impedes the immediate and effective implementation of that decision, is irreconcilable with the requirements arising from Article 14(3) of Regulation No 659/1999 (see, to that effect, Scott and Kimberly Clark , paragraph 30).
50. Given the finding set out in the preceding paragraph, there is no need to rule on the Commission’s claim that the Court should declare that the Italian Republic failed to inform the Commission of the measures referred to in that paragraph, since that Member State did not in fact implement Decision 2005/919 within the time-limits laid down (Case C-304/09 Commission  v Italy , paragraph 57 and the case-law cited).