Keywords
Summary

Keywords

1. Infringement proceedings – Failure to fulfil the obligation to recover unlawful aid – Defences – Absolute impossibility of implementation

(Arts 10 EC, 88(2), EC and 249 EC)

2. State aid – Recovery of unlawful aid – Application of national law – Adoption of interim suspension measures – Whether permissible – Conditions

(Council Regulation No 659/1999, Art. 14(3))

Summary

1. The Member State to which a decision requiring recovery of unlawful aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision. The Member State must actually recover the sums owed. Recovery out of time, after the deadlines set, and legislative steps intended to ensure the implementation by national courts of a Commission decision requiring the Member State to recover unlawful aid that are taken too late or prove ineffective, cannot satisfy the requirements of the Treaty.

A Member State that fails to adopt, within the time-limits laid down, all the measures necessary to abolish the aid scheme declared unlawful and incompatible with the common market by a Commission decision and to recover from the beneficiaries the aid granted under that scheme, fails to fulfil its obligations under that decision.

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

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 that would enable those difficulties to be overcome.

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 at issue. In such a case, the Member State and the Commission must respect the principle underlying Article 10 EC, which imposes a duty of genuine cooperation on the Member States and on the EU institutions, who must work together in good faith with a view to overcoming difficulties while fully observing the Treaty provisions and, in particular, the provisions on State aid.

(see paras 31-32, 35-37, 42, 58,operative part)

2. The national courts are required, under Article 14(3) of Regulation No 659/1999, to ensure that the decision ordering recovery of the unlawful aid is fully effective and achieves an outcome consistent with the objective pursued by that decision.

As regards the interim suspension measures adopted by the national courts, such measures may be granted, provided that certain conditions are met, namely: first, if the national court entertains serious doubts as to the validity of the EU measure and if, the validity of the contested measure not already being at issue before the Court of Justice, that court itself refers the question to the Court; second, if there is urgency, in that the interim relief is necessary in order to prevent serious and irreparable damage being caused to the party seeking the relief; third, if the national court takes due account of the interests of the European Union; and fourth, if, in its assessment of all those conditions, the national court complies with any decisions of the Court of Justice or the General Court ruling on the lawfulness of the EU measure or on an application for provisional measures seeking similar interim relief at EU level. In that regard, it should be stated that the national court cannot restrict itself to referring the question on validity to the Court for a preliminary ruling, but must, when making the interim order, set out the reasons for which it considers that the Court should find the EU measure to be invalid.

(see paras 44-46)