Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations Non-compliance with a Commission decision on State aid Pleas in defence Plea alleging that the decision is unlawful Inadmissible Limits Non-existent measure

(EC Treaty, Art. 93(2), second subpara. (now Article 88(2), second subpara., EC); Arts 226 EC, 227 EC, 230 EC and 232 EC)

2. Actions for failure to fulfil obligations Non-compliance with a Commission decision on State aid Pleas in defence Absolutely impossible to implement

(EC Treaty, Art. 93(2) (now Article 88(2) EC))

3. State aid Commission decision finding aid incompatible with the common market Difficulties of implementation Obligation of the Commission and the Member State to cooperate in seeking a solution compatible with the Treaty

(EC Treaty, Arts 5 and 93(2), first subpara. (now Articles 10 EC and 88(2), first subpara., EC))

Summary

1. The system of remedies set up by the Treaty distinguishes between actions under Articles 226 and 227 EC, which are directed to obtaining a declaration that a Member State has failed to fulfil its obligations, and those under Articles 230 EC and 232 EC, which are directed to obtaining judicial review of measures adopted by the Community institutions or of failure on their part to act. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision. It is immaterial whether such unlawfulness is pleaded in the action brought against the Member State or, as in this case, in an action for annulment of the decision at issue.

The position could be different only if the measure in question contained particularly serious and manifest defects such that it could be deemed non-existent. That also applies to an action for failure to fulfil obligations based on the second subparagraph of Article 93(2) of the Treaty (now the second subparagraph of Article 88(2) EC).

( see paras 18-20 )

2. The only defence available to a Member State in opposing an application by the Commission under Article 93(2) of the Treaty for a declaration that it has failed to fulfil its Treaty obligations is to plead that it was absolutely impossible for it to implement the decision properly.

( see para. 23 )

3. Where a Member State, when implementing a Commission decision relating to State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences not contemplated by the Commission, it must submit those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question. In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the Treaty (now Article 10 EC), which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid.

( see para. 24 )

4. A decision is presumed to be lawful and, despite the existence of an action for annulment, it remains binding in all respects on the Member State to which it is addressed.

( see para. 26 )