Commission of the European Communities v French Republic.
Date: 2008-11-13
43. Where a negative decision is taken in a case of unlawful aid, the recovery of that aid, ordered by the Commission, takes place according to the conditions provided for in Article 14(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), which states:
‘… recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Community law.’
44. According to settled case-law, the only defence available to a Member State in opposing an application by the Commission under Article 88(2) EC for a declaration that it has failed to fulfil its obligations is to plead that it was absolutely impossible for it properly to implement the decision (see, inter alia, Case C‑177/06 Commission  v Spain  [2007] ECR I-7689, paragraph 46 and the cited case-law).
45. In the event of difficulties, the Commission and the Member State must, pursuant to the rule imposing on the Member States and the Community institutions reciprocal duties of genuine cooperation, which underlies, in particular, Article 10 EC, work together in good faith with a view to overcoming those difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on State aid (see Case C‑415/03 Commission v Greece [2005] ECR I‑3875, paragraph 42 and the cited case-law).
46. 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 and the cited case-law).
50. Those difficulties, concerning the identification of the recipients, the calculation of the amount of the aid to be recovered and the choice and implementation of recovery procedures, are internal difficulties caused by the national authorities’ own acts or omissions.
59. For the purposes of checking the financial conditions of the transfer, the national authorities may take into consideration, in particular, the form of the transfer, for example, public tendering, deemed to ensure that a sale takes place under market conditions.
60. They may also take into consideration, in particular, any expert’s report prepared at the time of the transfer.
67. The Court does not need to examine the head of claim based on Article 6 of the decision and seeking a declaration that the French Republic has failed to inform the Commission of the measures taken and to be taken in order to implement the decision, since the Member State did not in fact implement the decision within the prescribed period (see, inter alia, Commission  v Spain , paragraph 54 and the cited case-law).