1. Actions for failure to fulfil obligations – Non-compliance with a Commission decision concerning State aid
(Art. 88(2), second subpara., EC)
2. State aid – Recovery of unlawful aid
(Council Regulation No 659/1999, 13 th recital and Art. 14(3))
3. Community law – Principles – Right to effective judicial protection
(Art. 230 EC)
4. State aid – Commission decision finding aid incompatible with the common market and ordering its repayment
(Arts 88(2), 230, second and fifth paras, and 242 EC)
1. In the context of an action seeking a declaration that a Member State has failed to fulfil its obligations by failing to adopt the measures necessary to comply with a Commission decision on State aid, the reference date for the application of the second subparagraph of Article 88(2) EC is that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission.
(see para. 32)
2. Under Article 14(3) of Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC], the application of national procedures for the recovery of State aid declared incompatible with the common market is subject to the condition that those procedures allow the immediate and effective execution of the Commission’s decision, a condition which reflects the requirements of the principle of effectiveness. Similarly, the 13th recital of Regulation No 659/1999 states that, in cases of unlawful aid which is not compatible with the common market, effective competition should be restored and for this purpose it is necessary that the aid be recovered without delay.
The application of national procedures should not therefore impede the restoration of effective competition by preventing the immediate and effective execution of the Commission’s decision. To achieve this result, Member States should take all necessary measures ensuring the effectiveness of that decision.
In that respect, a national procedure providing for the suspensory effect of actions brought against demands for payment issued for the recovery of aid granted cannot be considered to allow the ‘immediate and effective’ execution a decision ordering the recovery of aid. On the contrary, by granting such suspensory effect, the procedure can considerably delay the recovery of the aid.
(see paras 49-51)
3. The suspensory effect of actions brought before national courts against demands for payment issued against recipients of State aid the recovery of which has been ordered by a Commission decision cannot be considered essential for ensuring effective judicial protection in the light of Community law.
Such protection is already fully ensured by the means provided by the Treaty, in this case, in particular, the action for annulment under Article 230 EC which is open to those recipients against the Commission decision.
Since the European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts.
(see paras 55-58)
4. It is not possible for a recipient of aid which has been declared incompatible with the common market, who could have challenged the Commission’s decision before the Community Courts, to call that decision back into question before the national courts in an action brought against the measures taken by the national authorities for implementing that decision. To accept that in such circumstances the person concerned could challenge the implementation of the Community decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action laid down in the fifth paragraph of Article 230 EC has expired.
(see paras 59-60)