European Commission v Italian Republic.
Date: 2010-12-22
31. 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).
32. The Member State must actually recover the sums owed (see Commission  v France , paragraph 42). Recovery out of time, after the deadlines set, cannot satisfy the requirements of the Treaty (see, to that effect, judgment of 14 February 2008 in Case C‑419/06 Commission  v Greece , paragraphs 38 and 61).
35. 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, inter alia, Case C‑177/06 Commission  v Spain  [2007] ECR I-7689, paragraph 46, and Case C‑214/07 Commission  v France  [2008] ECR I‑8357, paragraph 44).
36. 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, inter alia, Joined Cases C‑485/03 to C‑490/03 Commission  v Spain  [2006] ECR I‑11887, paragraph 74, and Case C‑214/07 Commission  v France , paragraph 46).
37. 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 (see, inter alia, Case C‑348/93 Commission v Italy  [1995] ECR I‑673, paragraph 17; Case C‑99/02 Commission  v Italy  [2004] ECR I‑3353, paragraph 17; Case C‑207/05 Commission  v Italy , paragraph 47; and Case C‑280/05 Commission  v Italy,  paragraph 20).
38. In that respect, it should be noted that, in its contacts with the Commission as well as in the proceedings before the Court, the Italian Republic did not plead that it was absolutely impossible for it to implement Decision 2006/261, which was the only defence available by virtue of the case-law referred to in paragraph 35 above.
39. In fact, the Italian Government merely informed the Commission of the legal or practical difficulties involved in giving effect to the decision.
40. 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 Decree-Law No 59/2008. In particular, it appears from the documents before the Court that that measure, which was intended to resolve the procedural problem of the suspension of operation of the repayment orders by the national courts, was designed to speed up the settlement of the litigation already in progress.
41. However, Decree-Law No 59/2008 did not enable the delay in recovering the aid referred to in Decision 2006/261 to be remedied. It was adopted on 8 April 2008, that is to say, after 7 February 2007, the date of the order of the Commissione Tributaria Provinciale di Modena suspending enforcement of the repayment order addressed to the main beneficiary of the unlawful aid. Furthermore, despite the entry into force of Decree-Law No 59/2008, the proceedings concerning that main beneficiary have subsequently been stayed by the appeal court.
42. 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 31 and 32 above.
44. Furthermore, as regards the Commission’s argument concerning the option open to the national courts of adopting suspension measures during the aid recovery process, it should be pointed out that the national courts are required, under Article 14(3) of Regulation No 659/1999, to ensure that the decision ordering 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, paragraph 29).
52. That requirement is confirmed by the fact that an action brought before the General Court for annulment of a decision ordering recovery of aid does not have suspensory effect on the obligation to implement that decision (see Case C‑280/05 Commission v Italy,  paragraph 21). The same applies when the judgment of the General Court in such an action is under appeal before the Court of Justice. In that regard, it should be added that the Italian Republic did not apply for interim measures in the context of that action for annulment.
57. 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 2006/261 within the time-limits laid down (see Case C‑348/93 Commission  v Italy , paragraph 31; Joined Cases C‑485/03 to C‑490/03 Commission  v Spain , paragraph 82; Case C‑177/06 Commission  v Spain , paragraph 54; Case C‑280/05 Commission  v Italy , paragraph 30; and Case C‑214/07 Commission  v France , paragraph 67).