European Commission v Hellenic Republic.
Date: 2018-01-17
34


It is clear from the case-law of the Court that the Member State to which a decision requiring recovery of unlawful aid declared incompatible with the internal market is addressed is obliged under Article 288 TFEU to take all measures necessary to ensure implementation of that decision. It must succeed in actually recovering the sums owed in order to eliminate the distortion of competition caused by the anticompetitive advantage procured by that aid (judgment of 24 January 2013, Commission v Spain, C‑529/09, EU:C:2013:31, paragraph 91).
35


It follows from the first sentence of Article 14(3) of Regulation No 659/1999, read in the light of recital 13 of that regulation, that the recovery of unlawful aid found to be incompatible with the internal market is to be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow for the immediate and effective execution of the Commission’s decision. To that end, the Member States concerned must take all necessary steps available in their respective legal systems, including provisional measures, without prejudice to EU law (judgment of 11 September 2014, Commission v Germany, C‑527/12, EU:C:2014:2193, paragraph 38).
36


In cases in which the unlawful State aid paid must be recovered from recipient undertakings which are in financial difficulty or are insolvent, it should be recalled that such difficulties do not affect the obligation to recover (see, to that effect, judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 71). The Member State is therefore required, as the case may be, to bring about the winding-up of that company, to have its claim registered as one of that company’s liabilities or to take any other measure enabling the aid to be recovered (see, to that effect, judgment of 6 December 2007, Commission v Italy, C‑280/05, not published, EU:C:2007:753, paragraph 28).
37


According to settled case-law, restoration of the previous situation and elimination of the distortion of competition resulting from that aid may, in principle, be achieved through registration of the debt relating to the repayment of the aid in question in the schedule of liabilities (judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 72 and the case-law cited).
38


However, it must be noted that such registration can satisfy the recovery obligation only if, where the State authorities are unable to recover the full amount of aid, the insolvency proceedings result in the winding-up of the undertaking, that is to say, in the definitive cessation of its activities, which the State authorities are able to bring about in their capacity as shareholders or creditors (judgment of 13 October 2011, Commission v Italy, C‑454/09, not published, EU:C:2011:650, paragraph 36).
40


As to the temporal aspects of the recovery of the aid found to be unlawful and incompatible with the internal market, first, it should be recalled that delayed recovery, namely, after the period prescribed, cannot satisfy the requirements of the FEU Treaty (judgment of 12 December 2013, Commission v Italy, C‑411/12, not published, EU:C:2013:832, paragraph 29 and the case-law cited).
42


In those circumstances, registration of the debt relating to the repayment of the aid in question in the schedule of liabilities must be regarded as being, in principle, an appropriate measure capable of ensuring the elimination of the distortion of competition, as was recalled in paragraph 37 above, provided that such a measure is followed either by the recovery of the full amount of that aid or by the winding-up of the undertaking and the definitive cessation of its activities, if such recovery remains impossible throughout the insolvency proceedings.
43


For such a measure to be effective, in particular having regard to the requirement of immediate implementation of the decision ordering the recovery of unlawful aid found to be incompatible with the internal market, it must, as the Advocate General noted in point 60 of her Opinion, be carried out within the period prescribed by the Commission (see, to that effect, judgments of 14 April 2011, Commission v Poland, C‑331/09, EU:C:2011:250, paragraphs 60 to 65; of 13 October 2011, Commission v Italy, C‑454/09, not published, EU:C:2011:650, paragraphs 38 to 42; and of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraphs 73 to 75).
45


In that regard, it should be noted that, according to settled case-law, the relevant date in Article 108(2) TFEU proceedings is the date specified in the decision failure to implement which is at issue or, where appropriate, the date subsequently fixed by the Commission (judgment of 12 February 2015, Commission v France, C‑37/14, not published, EU:C:2015:90, paragraph 56 and the case-law cited).
46


Where, in a specific case, the circumstances or reasons connected to internal procedures prevent the Member State registering the debt relating to recovery of the aid in question in the schedule of liabilities within the period prescribed, that Member State should, in accordance with the case-law of the Court, submit those issues to the Commission for its assessment, proposing appropriate amendments to the decision in question. That Member State and the Commission must, pursuant to the rule imposing a duty of sincere cooperation on the Member States and the EU institutions which underlies, in particular, Article 4(3) TEU, work together in good faith with a view to overcoming those difficulties whilst fully observing the provisions of the FEU Treaty and, in particular, the provisions on State aid (see, to that effect, judgment of 12 February 2015, Commission v France, C‑37/14, not published, EU:C:2015:90, paragraph 67).
48


Accordingly, if, on the date specified in the decision ordering that recovery or, if applicable, the date subsequently fixed by the Commission, the Member State concerned has not taken the measures necessary to fulfil the obligation to recover the aid in question and, in particular, to achieve the restoration of the previous situation and the elimination of the distortion of competition resulting from the unlawfully paid State aid, it must be found, for the purposes of the infringement proceedings under the second subparagraph of Article 108(2) TFEU, that that Member State has failed to fulfil its obligations resulting from the Commission’s decision and that, accordingly, all other measures taken after the date specified in the decision are irrelevant for the assessment of whether that Member State took all the measures necessary for the implementation of that decision by the date when the period for implementation laid down by the Commission expired (see, to that effect, judgment of 3 July 2001, Commission v Belgium, C‑378/98, EU:C:2001:370, paragraph 28).