Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE).
Date: 2008-02-12
33. In that regard, it is appropriate to note that the first sentence of Article 88(3) EC imposes on the Member States an obligation to inform the Commission of any plans to grant or alter aid.
36. The prohibition laid down by that provision is designed to ensure that a system of aid cannot become operational before the Commission has had a reasonable period in which to study the proposed measures in detail and, if necessary, to initiate the procedure provided for in Article 88(2) EC (Case C‑301/87 France  v Commission  [1990] ECR I‑307, ‘ Boussac ’, paragraph 17).
37. Article 88(3) EC thus institutes prior control of plans to grant new aid (Case 120/73 Lorenz  [1973] ECR 1471, paragraph 2).
38. Whilst the Commission must examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the prohibition on giving effect to aid, national courts do no more than preserve, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 88(3) EC (Case C‑354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon  [1991] ECR I‑5505, ‘ FNCE ’, paragraph 14). It is, indeed, important to protect parties affected by the distortion of competition caused by the grant of the unlawful aid (see, to that effect, Case C‑368/04 Transalpine Ölleitung in Österreich and Others  [2006] ECR I‑9957, paragraph 46).
39. The national courts must in principle allow an application for repayment of aid paid in breach of Article 88(3) EC (see, in particular, Case C‑39/94 SFEI and Others  [1996] ECR I‑3547, paragraph 70).
40. The Commission’s final decision does not have the effect of regularising, retrospectively, implementing measures which were invalid because they had been taken in disregard of the prohibition laid down by that article. Any other interpretation would have the effect of according a favourable outcome to the non‑observance, by the Member State concerned, of the last sentence of Article 88(3) EC and would deprive it of its effectiveness (‘ FNCE ’, cited above, paragraph 16).
41. The national courts must therefore ensure that all appropriate conclusions will be drawn from an infringement of the last sentence of Article 88(3) EC, in accordance with their national law, as regards both the validity of measures giving effect to the aid and the recovery of financial support granted in disregard of that provision (‘ FNCE ’, paragraph 12, and SFEI and Others , cited above, paragraph 40, as well as Joined Cases C‑261/01 and C‑262/01 van Calster and Others  [2003] ECR I‑12249, paragraph 64, and Transalpine Ölleitung in Österreich and Others , cited above, paragraph 47).
42. However, there may be exceptional circumstances in which it would be inappropriate to order repayment of the aid ( SFEI and Others , paragraph 70).
43. In that regard, the Court has already held, in respect of a situation in which the Commission had adopted a negative final decision, 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 circumstances of the case, if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice (Case C‑5/89 Commission  v Germany  [1990] ECR I‑3437, paragraph 16).
46. In such a case, Community law requires that court to order the measures appropriate effectively to remedy the consequences of the unlawfulness. However, even in the absence of exceptional circumstances, Community law does not impose an obligation of full recovery of the unlawful aid.
47. The last sentence of Article 88(3) EC is based on the preservative purpose of ensuring that an incompatible aid will never be implemented. That purpose is achieved first, provisionally, by means of the prohibition which it lays down, and, later, definitively, by means of the Commission’s final decision, which, if negative, precludes for the future the implementation of the notified aid plan.
48. The intention of the prohibition thus effected is therefore that compatible aid may alone be implemented. In order to achieve that purpose, the implementation of planned aid is to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision.
49. When the Commission adopts a positive decision, it is then apparent that the purpose referred to in paragraphs 47 and 48 of the present judgment has not been frustrated by the premature payment of the aid.
50. In that case, from the point of view of operators other than the recipient of such aid, its unlawfulness will, first, expose them to the risk, in the result unrealised, of the implementation of incompatible aid, and, second, make them suffer, depending on the circumstances earlier than they would have had to, in competition terms, the effects of compatible aid.
51. From the aid recipient’s point of view, the undue advantage will have consisted, first, in the non-payment of the interest which it would have paid on the amount in question of the compatible aid, had it had to borrow that amount on the market pending the Commission’s decision, and, second, in the improvement of its competitive position as against the other operators in the market while the unlawfulness lasts.
52. In a situation such as that in the main proceedings, the national court must therefore, applying Community law, order the aid recipient to pay interest in respect of the period of unlawfulness.
53. Within the framework of its domestic law, it may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State’s right to re‑implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid (see, to that effect, SFEI and Others , paragraph 75, and Transalpine Ölleitung in Österreich and Others , paragraph 56).
54. As regards the aid itself, it must be added that a measure which consisted only in an obligation of recovery without interest would not be appropriate, as a rule, to remedy the consequences of the unlawfulness if the Member State were to re‑implement that aid after the Commission’s final positive decision. Since the period between the recovery and the reimplementation would be shorter than that between the initial implementation and the final decision, the aid recipient, would bear, if it had to borrow the amount repaid, less interest than it would have paid if, from the outset, it had to borrow the equivalent of the unlawfully granted aid.
55. The reply to the first question referred must therefore be that the last sentence of Article 88(3) EC is to be interpreted as meaning that the national court is not bound to order the recovery of aid implemented contrary to that provision, where the Commission has adopted a final decision declaring that aid to be compatible with the common market, within the meaning of Article 87 EC. Applying Community law, the national court must order the aid recipient to pay interest in respect of the period of unlawfulness. Within the framework of its domestic law, it may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State’s right to re-implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid.
The second question
60. The principle that acts of the Community institutions are presumed to be lawful means that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (Case C‑475/01 Commission  v Greece  [2004] ECR I‑8923, paragraph 18, and the case-law cited).
61. Under the first paragraph of Article 231 EC when an action for annulment is well-founded, the Community court must declare the contested act void. It follows that the Community court’s decision of annulment leads to the disappearance retroactively of the contested act with regard to all persons (Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission  [2006] ECR I‑4845, paragraph 43).
65. After the annulment of a positive decision of the Commission, a recipient of unlawfully implemented 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 from declining to refund that aid (see, by analogy, Commission  v Germany , cited above, paragraph 16, as regards a final negative decision of the Commission).
66. However, the Court has already held, in respect of circumstances where the Commission had initially decided not to raise any objections to the aid in issue, that such fact could not be regarded as capable of having caused the recipient undertaking to entertain any legitimate expectation since that decision had been challenged in due time before the Court, which annulled it (Case C‑169/95 Spain  v Commission  [1997] ECR I‑135, paragraph 53).
67. The Court has also held that, so long as the Commission has not taken a decision approving aid, and so long as the period for bringing an action against such a decision has not expired, the recipient cannot be sure as to the lawfulness of the proposed aid which alone is capable of giving rise to a legitimate expectation on his part (Case C‑91/01 Italy  v Commission  [2004] ECR I‑4355, paragraph 66).