Provisional text

OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 18 December 2025 (1)

Case C‑545/24

Utiledulci – Comércio Internacional e Serviços, Sociedade Unipessoal, Lda. – Zona Franca da Madeira

v

Autoridade Tributária e Assuntos Fiscais da Região Autónoma da Madeira

(Request for a preliminary ruling from the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Madeira, Portugal))

( Reference for a preliminary ruling – Aid scheme implemented by Portugal for the Madeira Free Zone – Regime III – Reduction in corporation tax – Immediate and effective recovery – Refusal to grant a suspension of the tax enforcement procedure )

I.      Introduction

1.        By this request for a preliminary ruling, the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Madeira, Portugal) asks the Court of Justice a question on the interpretation of Article 16(3) of Regulation (EU) 2015/1589 (2) and on the scope of the obligation incumbent on Member States to proceed to the ‘immediate and effective’ recovery of State aid that is unlawful and incompatible with the internal market following a decision of the European Commission adopted pursuant to paragraph 1 of that provision. The referring court asks, in particular, whether the procedural guarantees provided for in Portuguese law in favour of the taxpayer – which allow, under certain conditions, for the suspension of the tax enforcement procedure – must be disapplied, where necessary, in order to ensure the fulfilment of that obligation. (3)

2.        That question has been raised in a dispute between the Autoridade Tributária e Assuntos Fiscais da Região Autónoma da Madeira (Authority for Tax and Fiscal Affairs of the Autonomous Region of Madeira; ‘the tax authority’) and the company Utiledulci – Comércio Internacional e Serviços, Sociedade Unipessoal, Lda. – Zona Franca da Madeira (‘Utiledulci’), arising in the context of a tax enforcement procedure opened against that company with a view to recovering unlawful State aid.

II.    Regulatory context

A.      European Union law

3.        Recital 25 of Regulation (EU) 2015/1589 states:

‘In cases of unlawful aid which is not compatible with the internal market, effective competition should be restored. For this purpose it is necessary that the aid, including interest, be recovered without delay. It is appropriate that recovery be effected in accordance with the procedures of national law. The application of those procedures should not, by preventing the immediate and effective execution of the Commission decision, impede the restoration of effective competition. To achieve this result, Member States should take all necessary measures ensuring the effectiveness of the Commission decision.’

4.        Article 16 of that regulation, entitled ‘Recovery of aid’, provides as follows in paragraphs 1 and 3:

‘1.      Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (“recovery decision”). The Commission shall not require recovery of the aid if this would be contrary to a general principle of Union law.

…

3.      Without prejudice to any order of the Court of Justice of the European Union pursuant to Article 278 TFEU, 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 Union law.’

B.      Portuguese law

5.        Article 52 of the Lei Geral Tributária (General Tax Law), approved by Decreto-Lei 398/98 (Decree-Law No 398/98) of 17 December 1998, (4) provides as follows:

‘1      In a tax enforcement procedure, collection of the tax due shall be suspended in the case of payment in instalments or of a complaint, legal action at first or second instance and opposition to enforcement where the subject matter is the unlawfulness or chargeability of the enforceable debt, and also during dispute resolution procedures under the arbitration Convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (90/463/EEC) of 23 July 1990.[ (5)]

2      The suspension of enforcement referred to in the preceding paragraph shall be conditional on the provision of suitable security in accordance with tax legislation.

3      …

4      The tax authority may, at the request of the person subject to the enforcement procedure, exempt that person from providing security, where its provision would cause that person irreparable damage or where there is a manifest lack of financial means, made evident by a lack of assets that could be seized to pay the enforceable debt and any possible increases in it, provided there are no meaningful indications that the lack or non-existence of assets is due to fraudulent conduct on the part of the person concerned.

…’

6.        The Código de Procedimento e de Processo Tributário (Code of Taxation Procedure and Proceedings) (6) specifically regulates cases where a tax enforcement procedure is suspended. (7) Article 199 of that code provides, in particular, that the provision of security in order to obtain the suspension of a tax enforcement procedure may consist, in particular, of a bank guarantee, a form of security, a guarantee issued by an insurer or any means capable of securing the amounts owed to the tax enforcement body.

III. The dispute in the main proceedings and the question referred for a preliminary ruling

7.        The dispute in the main proceedings may be summarised as follows.

8.        On 4 December 2020, the Commission adopted Decision (EU) 2022/1414 (8) (‘the 2020 decision’), whereby, in the context of the ongoing review of existing aid schemes under Article 108(1) TFEU, it declared the aid scheme for the Madeira Free Zone (‘the scheme ZFM III’) incompatible with the internal market in so far as it had been implemented by Portugal in breach of the Commission’s approval decisions of 2007 and 2013. (9) The aid in question consisted of a reduction in the income tax rate applicable to the recipient companies. Article 5 of the 2020 decision specified that the recovery of aid incompatible with the internal market granted under that scheme was to be ‘immediate and effective’ and that Portugal was required to implement that decision ‘within eight months following the date of notification of this Decision’. That time limit expired on 5 August 2021. The actions for annulment brought by Portugal and the Autonomous Region of Madeira against the 2020 decision were dismissed by the General Court (10) and the related judgments were upheld on appeal by the Court of Justice. (11)

9.        On the basis of the 2020 decision, the tax authority initiated a tax enforcement procedure against Utiledulci in 2023 in order to recover the aid granted to that company under that scheme. (12) According to the file submitted by the referring court, Utiledulci lodged a complaint challenging the act by which that procedure was initiated, since there was no provision for requesting its suspension under Portuguese law. That complaint was rejected by the tax authority, which argued that, in accordance with the obligations arising from the principle of the primacy of EU law, and taking into account the Commission Notice on the recovery of unlawful and incompatible State aid, (13) it was required to disapply those provisions after the expiry of the eight-month period laid down in the 2020 decision. Utiledulci therefore referred the matter to the referring court.

10.      In those circumstances, the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the wording “recovery … shall be immediate and effective”, appearing in Article 5 of [the 2020 decision], and the wording “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”, appearing in Article 16(3) of [Regulation 2015/1589], be interpreted as meaning that the rules of Portuguese law relating to the procedural guarantees provided for in tax enforcement procedures, in particular those relating to the suspension of the tax enforcement procedure, are to be disapplied, or, conversely, as meaning that the [tax authority] is still obliged to comply with all of the procedural guarantees provided for in Portuguese tax law, irrespective of the fact that the case in question concerns the recovery of State aid declared unlawful by the Commission’s decision?’

11.      Utiledulci, the tax authority, the Belgian and Spanish Governments and the Commission submitted written observations and were heard at the hearing on 1 October 2025.

IV.    Analysis

12.      By its question referred for a preliminary ruling, the referring court asks, in essence, whether the provisions of domestic law that grant taxpayers certain procedural guarantees allowing the suspension of a tax enforcement procedure under certain conditions should be disapplied where, in the absence of a specific procedure laid down by national law, such a procedure has been initiated for the purpose of recovering State aid that is unlawful and incompatible with the internal market, and the time limit laid down in the Commission decision ordering its recovery has expired.

13.      The provisions of the national law in question establish a right to request and obtain such a suspension in the event of a dispute over the debt or opposition to enforcement measures and in the event of payment by instalments, provided that adequate security or any other means suitable for guaranteeing the tax claim is provided, or even in the absence of such security, if the taxpayer can prove that he or she is unable to provide it. It is apparent from the written observations of the parties to the main proceedings that the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) has ruled on several occasions in disputes arising from a refusal by the tax authority to grant a suspension under those provisions, annulling the refusal and ruling that the authority does not have the power to adjust the legal regime governing tax enforcement by disapplying the procedural guarantees laid down in that regime. (14)

14.      In order to examine this question, it is necessary, first of all, to refer to the Court’s case-law concerning the scope of the obligation incumbent on Member States under Article 16 of Regulation 2015/1589 to recover aid that has been the subject of refusal decisions. That case-law emphasises the need to ensure the effectiveness and speed of recovery, in line with the objectives it pursues.

15.      The Court has clarified that the abolition of aid deemed by the Commission to be incompatible with the internal market, as provided for in Article 108(2) TFEU, is intended to restore the situation that existed prior to the aid being paid. (15) That restoration, which is a necessary requirement for preserving the effectiveness of the provisions of the Treaties concerning State aid, (16) is achieved once the aid in question, increased by default interest, has been repaid by the recipient (17) and that recipient has forfeited the advantage which it had enjoyed over its competitors on the market. (18) The recovery of unlawful aid cannot therefore be regarded as a sanction, (19) and nor is it intended to enable the satisfaction of a claim against the paying body; it is, rather, the logical consequence of the finding that it is unlawful (20) and meets the need to eliminate the distortion of competition caused by the advantage unduly granted to its recipient. (21) In line with those objectives, the Court has specified that the Member State concerned must actually recover the sums owed. (22)

16.      With regard to time limits, the Court has clarified that the Member State concerned must recover the amounts owed in a timely manner, and thus within the time limit set in the Commission’s decision or within the time limit subsequently imposed by the Commission, (23) and that late recovery, beyond the time limits set, does not satisfy the requirements of the Treaty. (24) The Court has also clarified that taking action to recover unlawful aid, including instigating the relevant procedure, without actually obtaining repayment within the time limit set by the Commission’s decision, is not sufficient. (25) Last, the Court has held that, if the Member State encounters difficulties which hinder recovery, it may ask the Commission for an extension of the time limits, giving reasons for its request. (26)

17.      In summary, it follows from the case-law set out in points 15 and 16 of the present Opinion that the obligation incumbent on the Member State to which a recovery decision is addressed, pursuant to Article 16(1) of Regulation 2015/1589, to take all necessary steps to recover the aid from the recipient constitutes an obligation to achieve a result, (27) to be fulfilled within the time limits set by the Commission.

18.      With regard to the unlawful aid granted under the scheme ZFM III, the 2020 decision sets a deadline of eight months from the date of its notification. In the light of Article 16(3) of Regulation 2015/1589 and the case-law referred to, the aid was therefore required to be recovered within that period. In the light of the case-law cited above, conversely, the interpretation proposed by the Belgian Government in its observations before the Court – whereby that deadline should be understood as referring only to the opening of the procedure to enforce the decision – is not convincing. (28) Such an interpretation, in that it prolongs the undue competitive advantage enjoyed by the recipients of the aid, would be contrary to the purpose of the recovery obligation imposed on Portugal and would clearly undermine the terms and scope of the 2020 decision. (29)

19.      In so far as the detailed rules for recovery are concerned, in accordance with Article 16(3) of Regulation 2015/1589, recovery must be effected in accordance with the procedures under the national law of the Member State concerned. In the absence of relevant provisions of EU law, Member States are free to choose the means by which they will fulfil their recovery obligations, (30) which must be carried out in accordance with the specific features of the various procedures provided for that purpose. (31)

20.      The application of national procedures is, however, subject to the condition that those procedures allow the immediate and effective execution of the Commission’s decision, (32) a condition that, as specified by the Court, ‘reflects the requirements of the principle of effectiveness’. (33) Freedom to choose the means by which recovery is achieved cannot therefore be understood as absolute. The means chosen may not adversely affect the scope and effectiveness of EU law (34) and may not have the effect of making the recovery required by EU law practically impossible. (35) The Court has already clarified, on this point, that national provisions that do not allow for the immediate and effective execution of the recovery decision must, in principle, be left unapplied. (36) Last, the Court has held that the absence of specific provisions governing recovery in national law ‘cannot stand in the way of the full application of [EU] law and can therefore have no effect on the obligation to recover the aid in question’. (37)

21.      It follows that, in the field of State aid, the procedural autonomy granted to Member States in relation to recovery is strictly limited by the need to ensure the effectiveness of the action taken by the administrative authorities responsible for carrying it out. This implies a limitation on the discretion of those authorities not only with regard to recovery, (38) but also with regard to the means of implementing recovery. (39) Those authorities, like national courts, are required to reach a solution that is consistent with the objective pursued by the recovery decision, (40) which is to prevent the functioning of the market from being distorted by State aid that undermines competition. National law must in any case be applied in accordance with fundamental rights, in particular the right to a fair trial, including the rights of the defence. (41)

22.      It is on the basis of those principles that the question referred by the referring court must be answered.

23.      As a preliminary point, I note that Portuguese law does not provide for any specific procedure for the recovery of unlawful State aid.

24.      In the dispute giving rise to the main proceedings, the tax authority initiated a tax enforcement procedure against Utiledulci. As we have seen, the provisions governing such a procedure allow for the possibility for the taxpayer to obtain a suspension in the event of a complaint, legal action or payment in instalments, subject to the provision of ‘adequate security’. Those provisions differ from the provisions of the French law at issue in the case which gave rise to the judgment of 5 October 2006, Commission v France, (42) referred to in the observations submitted to the Court, which provided for automatic suspension of an enforcement procedure in the event of a challenge brought against orders for payment issued by the national authorities. However, it became apparent during the hearing that the tax authority has no discretion regarding the suspension of an enforcement procedure where the condition relating to the provision of adequate security is met, or regarding exemption therefrom where the party subject to enforcement demonstrates that the provision of such security could cause irreparable damage or where that party clearly does not have the financial means to do so. The suspension therefore derives directly from the provisions of Portuguese law governing tax enforcement procedures and is a procedural guarantee to which all taxpayers have access if they request it and meet the corresponding conditions. The Portuguese scheme, like the French scheme in the abovementioned case, is therefore characterised by aspects that are systematic and automatic.

25.      As is clear from the Court’s case-law referred to in point 15 of the present Opinion, in order to assess whether that scheme is compatible with the execution of the recovery obligation imposed by the 2020 decision, it is necessary to consider whether it jeopardises the achievement of the objective pursued by imposing that obligation – that is to say, the immediate restoration of the situation that existed before the aid in question was granted – by allowing the undue competitive advantage for the recipients of that aid to be prolonged.

26.      Such a situation seems inevitable to me in cases where the suspension is granted on the basis of a guarantee or security provided by a third party or of a mortgage, as provided for in Portuguese law, since those are instruments that do not result in the aid being diverted from the recipient’s assets, thereby depriving that person of the corresponding advantage. Contrary to what was argued at the hearing by the representative of the Belgian Government, (43) that outcome does not appear to me to be the case even where a bank guarantee is provided, (44) since the accounting consequences and the costs incurred in providing such a guarantee are not, in my view, comparable, as regards their effect on the recipient’s financial position, to the repayment of the aid. (45) On the other hand, the explicit objective of all those instruments is to provide security to protect the creditor’s claim for the period during which the enforcement procedure is suspended, which is fundamentally different from that pursued by the recovery of unlawful aid. However, it is for the referring court to assess whether the provisions at issue, in so far as they make the suspension of the recovery procedure conditional upon the provision of security, in particular a bank guarantee, make it possible to avoid further delay in the effective recovery of the aid in question, thereby depriving the recipient of the competitive advantage associated with that aid.

27.      With regard to the possibility of exempting the debtor from providing security, it should be noted that, according to settled case-law, the recipient’s financial position has no bearing on the recovery obligation. The Member State concerned is required, as appropriate, to initiate the winding-up of the recipient undertaking, register its claim in the undertaking’s insolvency proceedings or take any other steps to ensure the recovery of the aid, including the definitive termination of the undertaking’s activities, if such recovery remains impossible in the course of the insolvency proceedings. (46) Considerations relating to the economic damage resulting from the repayment of the aid are therefore not taken into account to justify the delay in the recovery procedure.

28.      Last, with regard to the possibility of suspending a tax enforcement procedure in the event of payment of the amounts due in instalments, I note that, as stated by the Commission in its recovery notice, (47) such a method of payment, where authorised beyond the deadline for recovery, is incompatible with the requirement that recovery take place promptly, regardless of whether some form of security is provided.

29.      Based on the rulings of the Supremo Tribunal Administrativo (Supreme Administrative Court) referred to in point 13 of the present Opinion, Utiledulci argues that the procedural guarantees in question must be applied to it because, in the absence of specific provisions in Portuguese law, the legal regime governing tax enforcement cannot be ‘tailored’ by the tax authority in order to adapt it to the requirements for recovery of unlawful State aid, particularly when this is done on the basis of a Commission notice, which is not binding.

30.      On this question, I would point out that Member States are required to abolish unlawful aid under Article 108(2) TFEU and to ensure the immediate and effective recovery of such aid from the recipient in accordance with Regulation 2015/1589 and the Commission decision declaring such aid incompatible. With regard to the recovery notice, while it is true that it is not binding on national courts, the Court has nevertheless clarified that those courts are required to take it into account as a factor in the assessment of the dispute before them, by virtue of the principle of sincere cooperation. (48) The same applies to the national authorities responsible for recovery.

31.      Both those authorities and the national courts are required to ensure that decisions of the Commission ordering the recovery of unlawful aid are fully effective, (49) regardless of the procedure used to enforce them. As we have seen, the decision of a Member State not to lay down specific rules for the recovery of unlawful aid, in the exercise of the procedural autonomy it enjoys, must not prevent the achievement of the objectives of EU law and undermine the effectiveness of the provisions on State aid.

32.      Utiledulci and the Belgian Government also argue that disregarding the procedural guarantees provided for in tax enforcement procedures would introduce unacceptable unequal treatment between taxpayers and infringe the principle of equality. On this point, we need only note that the procedure for recovering State aid has its own objectives and specific characteristics and that undertakings benefiting from tax aid subject to that procedure are not in the same situation as any taxpayer against whom the tax authority takes action to recover a tax claim. The reference made in this context by the Belgian Government to the principle of equivalence does not seem relevant to me. That principle – according to which the procedural rules designed to ensure, in each Member State, the protection of the rights that individuals derive from EU law must not be less favourable than those relating to rights based on national law (50) – is not relevant in a situation such as that in the main proceedings, where the question is whether the procedural guarantees normally provided for by national law, when applied to a procedure instigated for the purpose of enforcing an obligation arising from EU law, impede the full application of that law. In my view, the reference, again made by the Belgian Government, to case-law according to which recipients of tax aid may avail themselves of the deductions and allowances provided for under national law if it appears that, taking into account the transactions actually carried out, they were in fact entitled to do so, is equally irrelevant. (51) That case-law concerns restoring the tax regime applicable to the recipient in the absence of unlawful aid, in order to determine the amount to be recovered and re-establish the prior situation. (52) It has no bearing on the identification of recovery methods and does not imply that recovery must necessarily take place through tax enforcement and involve the application of the same procedural guarantees enjoyed by taxpayers subject to such a procedure where those guarantees do not allow the above objectives to be achieved.

33.      In its observations, Utiledulci also argues that the tax authority’s refusal to apply the national provisions on the suspension of a tax enforcement procedure, in the event that remedies are sought against acts adopted in the context of that procedure, infringes the principle of effective judicial protection. (53)

34.      On this question, I note that the Court has clarified that the suspension of the enforcement of national recovery orders by national courts is possible provided that the conditions set out, in particular, in the judgments of 21 February 1991, Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest, (54) and of 9 November 1995, Atlanta Fruchthandelsgesellschaft and Others (I), (55) are satisfied. The suspension must in particular be justified by arguments demonstrating that the decision in question is invalid (56) and cannot, in principle, be based solely on the risk of economic damage to the recipient. (57)

35.      Although I do not rule out a priori that a measure suspending the national recovery order may – in exceptional circumstances, and taking into account the interests of the European Union and the right of competitors to the elimination of distortion of competition – be adopted by a national court even where the company against which that order was issued does not contest, directly or indirectly, the legality of the Commission’s decision, (58) this does not justify in any event a regime of systematic suspension of the recovery procedure by the national authority beyond the time limits set by the Commission, such as that set out in the national provisions at issue in the present case.

36.      Where remedies are sought against the recovery decision, the Member State concerned may accept provisional recovery that ensures the complete elimination of the distortion of competition, for example by depositing the amount of the aid and the related interest in an escrow account. (59) By means of such a deposit, the recipient ceases, in principle, to have access to the amount corresponding to the aid, which is removed, albeit only temporarily, from that party’s assets.

37.      Last, with regard to the argument raised by Utiledulci, according to which the delay on the part of the tax authority in initiating the recovery procedure led Utiledulci to believe that it would not be among the recipients of the recovery order, I would point out that, according to the Court’s settled case-law, conduct by a national authority responsible for applying EU law that is contrary to a specific provision of that law cannot give rise to legitimate expectations. (60) While the Court recognises that the recipient of unlawfully granted aid may invoke exceptional circumstances on which it could reasonably rely as to the lawful nature of the aid and, consequently, oppose its recovery, (61) it is not apparent from the Court’s file or from Utiledulci’s observations that the latter has invoked such circumstances.

38.      It follows from all the foregoing considerations that national provisions such as those at issue in the main proceedings appear, subject to verification by the referring court, to be contrary to the objectives of abolishing unlawful aid declared incompatible with the internal market and to the requirement of ensuring the immediate and effective execution of decisions ordering its recovery.

V.      Conclusion

39.      On the basis of all the foregoing considerations, I suggest that the Court answer the question referred by the Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, Funchal, Madeira, Portugal) as follows:

Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union.

must be interpreted as meaning that, where a Member State recovers unlawful State aid that is incompatible with the internal market by means of tax enforcement, it precludes the application of national provisions that grant the taxpayer subject to such enforcement the right, under certain conditions, to suspension of that enforcement, in so far as such application does not allow the immediate and effective execution of the Commission decision ordering recovery, by depriving the recipient of the competitive advantage connected with the aid within the time limit laid down in that decision or within the time limit subsequently set by the Commission or, if those time limits have expired, without further delay. Where such execution is prevented, both the national courts and the competent national authorities, under the supervision of the former, are required to disapply the national provisions in question.

1      Original language: Italian.

2      Council Regulation of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

3      Similar questions were raised by the referring court in Case C‑792/24.

4      Diário da República n.º 290/1998, Série I-A de 1998-12-17.

5      OJ 1990 L 225, p. 10.

6      Approved by Decreto-Lei n.^o 433/99 (Decree-Law No 433/99) of 26 October 1999 and entered into force on 1 January 2000, Diário da República n.º 250/1999, Série I-A de 1999-10-26.

7      For the sake of completeness, I note that it appears from the Court’s file that Law No 7 of 26 February 2021 repealed paragraph 11 of Article 169 of the Código de Procedimento e de Processo Tributário, which provided that that article did not apply to debts contracted using the European Union’s own resources.

8      Decision of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) – Regime III (OJ 2022 L 217, p. 49).

9      Commission Decisions of 27 June 2007 on State aid No 421/2006 (OJ 2007 C 240, p. 1), and of 2 July 2013 on State aid SA.34160 (2011/N) (OJ 2013 C 220, p. 1).

10      See judgments of 21 September 2022, Portugal v Commission (Madeira Free Zone) (T‑95/21, EU:T:2022:567), and of 21 June 2023, Região Autónoma da Madeira v Commission (T‑131/21, EU:T:2023:348).

11      See judgments of 4 July 2024, Portugal v Commission (Madeira Free Zone) (C‑736/22 P, EU:C:2024:579), and of 16 January 2025, Região Autónoma da Madeira v Commission (Madeira Free Zone) (C‑547/23 P, EU:C:2025:22). The 2020 decision was also subject to various actions for annulment brought by individual undertakings, which led to extensive litigation, partly still ongoing, before the General Court and the Court of Justice; see, recently, judgments of 13 November 2025, AFG v Commission (C‑13/24 P, EU:C:2025:884), and of 13 November 2025, Sonasurf Internacional and Others v Commission (C‑9/24 P, EU:C:2025:883), by which the Court dismissed the appeals brought against the orders of the General Court declaring certain of those actions manifestly unfounded.

12      According to Utiledulci’s observations, over the course of 2023, the company received four different corporate income tax assessment notices for the years 2012 to 2015 and the corresponding interest.

13      OJ 2019 C 247, p. 1 (‘the recovery notice’).

14      See, in particular, judgment 033/24.1BEFUN of the Supremo Tribunal Administrativo (Supreme Administrative Court) of 7 March 2024. According to the information contained in the file of the present case, after the request for a preliminary ruling was lodged, the Supremo Tribunal Administrativo (Supreme Administrative Court) suspended the proceedings still pending before it.

15      See, inter alia, judgments of 14 September 1994, Spain v Commission (C‑278/92 to C‑280/92, EU:C:1994:325, paragraph 75); of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraphs 79 and 80); and of 9 October 2025, On Air Media Professionals and Different Media (C‑416/24 and C‑417/24, EU:C:2025:765, paragraph 56).

16      See judgment of 19 October 2023, Ministar na zemedelieto, hranite i gorite (C‑325/22, EU:C:2023:793, paragraph 47 and the case-law cited).

17      See judgment of 4 April 1995, Commission v Italy (C‑350/93, EU:C:1995:96, paragraph 22).

18      See, among many, judgments of 4 April 1995, Commission v Italy (C‑350/93, EU:C:1995:96, paragraph 22); of 11 December 2012, Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 105 and the case-law cited); and of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraph 79).

19      See judgment of 17 June 1999, Belgium v Commission (C‑75/97, EU:C:1999:311, paragraph 65).

20      See, among many, judgments of 21 March 1990, Belgium v Commission (C‑142/87, EU:C:1990:125, paragraph 66 and the case-law cited), and of 12 February 2015, Commission v France (C‑37/14, EU:C:2015:90, paragraph 51 and the case-law cited).

21      See judgments of 30 April 2020, Nelson Antunes da Cunha (C‑627/18, EU:C:2020:321, paragraph 42), and 19 October 2023, Ministar na zemedelieto, hranite i gorite (C‑325/22, EU:C:2023:793, paragraph 47).

22      See judgment of 16 January 2025, Scai (C‑588/23, EU:C:2025:23, paragraph 39 and the case-law cited).

23      See judgments of 12 February 2015, Commission v France (C‑37/14, EU:C:2015:90, paragraphs 55 and 56), and of 29 April 2021, Commission v Spain (DTT in Castilla-La Mancha) (C‑704/19, EU:C:2021:342, paragraph 50).

24      See, among many, judgments of 13 October 2011, Commission v Italy (C‑454/09, EU:C:2011:650, paragraph 37 and the case-law cited), and of 13 November 2025, Commission v Bulgaria (Forest land swaps II) (C‑632/23, EU:C:2025:890, paragraph 33 and the case-law cited).

25      See, to that effect, judgments of 22 December 2010, Commission v Slovakia (C‑507/08, EU:C:2010:802, paragraph 47); of 12 February 2015, Commission v France (C‑37/14, EU:C:2015:90, paragraphs 55 to 60); of 17 September 2015, Commission v Italy (C‑367/14, EU:C:2015:611, paragraphs 40 and 42); and of 13 November 2025, Commission v Bulgaria (Forest land swaps II) (C‑632/23, EU:C:2025:890, paragraph 64). See also judgment of 14 February 2008, Commission v Greece (C‑419/06, EU:C:2008:89, paragraphs 38 and 61), in which the Court declared that the Hellenic Republic had failed to fulfil its obligations despite the fact that that Member State had instigated a recovery procedure within the time limit set in the recovery decision.

26      See, to that effect, inter alia, judgment of 17 January 2018, Commission v Greece (C‑363/16, EU:C:2018:12, paragraphs 46 to 48).

27      See judgment of 13 November 2025, Commission v Bulgaria (Forest land swaps II) (C‑632/23, EU:C:2025:890, paragraph 64 and the case-law cited).

28      The same interpretation, put forward by the French Government in the case leading to the judgment of 5 October 2006, Commission v France (C‑232/05, ‘the judgment in Commission v France’, EU:C:2006:651, paragraph 40), was rejected by the Court.

29      See, by analogy, judgment of 22 December 2010, Commission v Slovakia (C‑507/08, EU:C:2010:802, paragraph 48).

30      See, to that effect, judgment of 14 April 2011, Commission v Poland (C‑331/09, EU:C:2011:250, paragraph 57 and the case-law cited).

31      See, to that effect, judgment of 22 December 2010, Commission v Slovakia (C‑507/08, EU:C:2010:802, paragraph 52).

32      See, among many, judgments of 14 April 2011, Commission v Poland (C‑331/09, EU:C:2011:250, paragraphs 58 and 59); of 24 January 2013, Commission v Spain (C‑529/09, EU:C:2013:31, paragraphs 91 and 92); of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraphs 40 and 41 and the case-law cited); and of 17 January 2018, Commission v Greece (C‑363/16, EU:C:2018:12, paragraph 34 and 35).

33      See the judgment in Commission v France, paragraph 49 and the case-law cited.

34      See judgment of 20 May 2010, Scott and Kimberly Clark (C‑210/09, EU:C:2010:294, paragraph 21).

35      See, to that effect, judgment of 13 February 2014, Mediaset (C‑69/13, EU:C:2014:71, paragraph 34).

36      See judgments of 5 October 2006, Commission v France (C‑232/05, EU:C:2006:651, paragraphs 51 to 53), and of 30 April 2020, Nelson Antunes da Cunha (C‑627/18, EU:C:2020:321, paragraph 52); and, last, with regard to the recovery of aid granted under the scheme ZFM III, order of 31 October 2025, Mission – Trading (C‑24/25, EU:C:2025:862, paragraph 25). See also judgments of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraph 55), and of 20 March 1997, Alcan Deutschland (C‑24/95, EU:C:1997:163, paragraphs 30 to 38).

37      See judgment of 21 March 1991, Italy v Commission (C‑303/88, EU:C:1991:136, paragraph 60).

38      See, to that effect, judgment of 20 March 1997, Alcan Deutschland (C‑24/95, EU:C:1997:163, paragraph 34).

39      See judgment of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraphs 53 and 55).

40      See, judgment of 20 May 2010, Scott and Kimberly Clark (C‑210/09, EU:C:2010:294, paragraph 29).

41      See judgments of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraph 39), and of 16 January 2025, Scai (C‑588/23, EU:C:2025:23, paragraph 55).

42      C‑232/05, EU:C:2006:651.

43      According to the Belgian Government, a bank guarantee can neutralise the advantage gained as a result of the aid, as the amount of the guarantee would be recorded as a liability in the recipient’s balance sheet, rendering it unusable. Furthermore, signing and maintaining a bank guarantee would entail costs that would affect the recipient’s financial position.

44      On this point, see also the recovery notice, paragraph 119.

45      The tax authority also clarified at the hearing that, under Portuguese law, guarantees are subject to a limitation period. This means that the guarantee would automatically expire after a certain period of time.

46      See judgments of 6 December 2007, Commission v Italy (C‑280/05, EU:C:2007:753, paragraph 28 and the case-law cited); of 17 January 2018, Commission v Greece (C‑363/16, EU:C:2018:12, paragraphs 36 and 37 and the case-law cited); and of 12 March 2020, Commission v Italy (Unlawful aid granted to the hotel industry in Sardinia) (C‑576/18, EU:C:2020:202, paragraph 99). As highlighted in the recovery notice (paragraph 127), those measures are intended to prevent a recipient that is unable to repay the aid received and the recovery interest due from surviving in the market solely thanks to the aid.

47      See paragraph 126 of the recovery notice.

48      See judgment of 16 January 2025, Scai (C‑588/23, EU:C:2025:23, paragraph 48).

49      See judgment of 20 May 2010, Scott and Kimberly Clark (C‑210/09, EU:C:2010:294, paragraph 29), and, to that effect, judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraphs 90 to 92 and the case-law cited).

50      See, among many, judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51, paragraph 72).

51      See judgment of 15 September 2022, Fossil (Gibraltar) (C‑705/20, EU:C:2022:680, paragraph 43).

52      See, also, judgment of 15 December 2005, UniCredito Italiano (C‑148/04, EU:C:2005:774, paragraphs 118 and 119).

53      The referring court does not specify on what grounds Utiledulci intends to avail itself of the suspension of the tax enforcement procedure. The national file shows that Utiledulci requested to be exempted from providing security, but it is unclear whether it intended to bring an action in order to challenge the lawfulness of the debt subject to enforcement.

54      C‑143/88 and C‑92/89, EU:C:1991:65.

55      C‑465/93, EU:C:1995:369.

56      See, inter alia, judgment of 12 March 2020, Commission v Italy (Unlawful aid granted to the hotel industry in Sardinia) (C‑576/18, EU:C:2020:202, paragraph 103).

57      See judgment of 29 March 2012, Commission v Italy (C‑243/10, EU:C:2012:182, paragraph 53).

58      In particular, if there is a dispute as to the amount of aid to be recovered or the fact that the party concerned is one of the recipients of an aid scheme in accordance with the criteria set out in the Commission’s decision.

59      See, to that effect, paragraph 118 of the recovery notice.

60      See, to that effect, judgments of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraphs 104 and 105), and of 9 October 2025, On Air Media Professionals and Different Media (C‑416/24 and C‑417/24, EU:C:2025:765, paragraphs 60 and 61).

61      See judgments of 20 September 1990, Commission v Germany (C‑5/89, EU:C:1990:320, paragraph 16), and of 9 October 2025, On Air Media Professionals and Different Media (C‑416/24 and C‑417/24, EU:C:2025:765, paragraph 63).