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 — (Art. 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 — (Art. 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 — (Arts 10 EC and 88(2) EC)

4. State aid — Recovery of unlawful aid — Application of national law — Conditions and limitations — Interests of the Community to be taken into account — (Art. 88(2), first subpara., EC)

Summary

1. The system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 226 EC and 227 EC, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 230 EC and 232 EC, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. 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. The position could be different only if the measure in question contained such particularly serious and manifest defects that it could be deemed non-existent.

That finding also applies in an action for failure to fulfil obligations brought under the second subparagraph of Article 88(2) EC.

see paras 40-42

2. The only defence available to a Member State in opposing an infringement action by the Commission under Article 88(2) EC is to plead that it was absolutely impossible for it to implement the decision properly.

see para. 45

3. 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 in question. In such a case, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 10 EC, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid.

see para. 46

4. Although, in the absence of Community provisions relating to the procedure applicable to the recovery of illegal aid, such recovery must take place, in principle, in accordance with the relevant provisions of national law, those provisions must however be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration.

see para. 51