Commission of the European Communities v Federal Republic of Germany.
Date: 1990-09-20
12 As the Court has ruled, inter alia in its judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959 ), in principle the recovery of aid unlawfully paid must take place in accordance with the relevant procedural provisions of national law, subject however to the proviso that those provisions are to be applied in such a way that the recovery required by Community law is not rendered practically impossible ( paragraph 61 ).
13 The Court has also acknowledged that, since the principle of the protection of legitimate expectations is part of the legal order of the Community, the fact that national legislation provides for the principles of the protection of legitimate expectations and assurance of legal certainty to be observed in a matter such as the recovery of unduly paid Community aids cannot be considered contrary to that same legal order ( judgment in Joined Cases 205 to 215/82 Deutsche Milchkontor GmbH and Others v Federal Republic of Germany [1983] ECR 2633, paragraph 30 ).
14 The same approach must be taken with regard to the recovery of national aid granted contrary to Community law . However, it must be noted that, in view of the mandatory nature of the supervision of State aid by the Commission under Article 93 of the Treaty, undertakings to which an aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article . A diligent businessman should normally be able to determine whether that procedure has been followed .
15 In that regard, it must be pointed out that, by a communication published in the Official Journal of the European Communities, the Commission informed potential recipients of State aid of the risk attaching to any aid granted them illegally, in that they might have to refund the aid ( Official Journal 1983 C 318, p . 3 ).
16 It is true that a recipient of illegally granted aid is not precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus declining to refund that aid . If such a case is brought before a national court, it is for that court to assess the material circumstances, if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice .
17 However, a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 93 may not rely on the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid . If it could do so, Articles 92 and 93 of the Treaty would be set at naught, since national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness .
18 Finally, the German Government may not rely, as making it absolutely impossible to implement the Commission' s decision, on the obligations to which the competent administrative authority is subject under the particular rules governing the protection of legitimate expectations in Paragraph 48 of the Verwaltungsverfahrensgesetz with regard to the weighing up of the interests involved and the period within which an administrative act granting a benefit may be revoked . As the Court has consistently held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law .
19 In particular, a provision laying down a time-limit for the revocation of an administrative act must, like all the relevant provisions of national law, be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration .