Case C-99/02
Commission of the European Communities
v
Italian Republic
(Failure of a Member State to fulfil obligations – State aid – Second subparagraph of Article 88(2) EC – Aid incompatible with the common market – Obligation to recover – Absolute impossibility of implementation)
Summary of the Judgment
- Actions for failure to fulfil obligations – Non-compliance with a Commission decision finding State aid incompatible with the common market – Pleas in defence – Absolute impossibility of implementation
(Art. 88(2) EC)
- State aid – Commission decision finding aid to be incompatible with the common market – Difficulties in implementation – Obligation on the Commission and the Member State to cooperate in seeking a solution consistent with the Treaty
(Arts 10 EC and 88(2) EC)
- Actions for failure to fulfil obligations – Failure to comply with a Commission decision finding State aid incompatible with the common market – Obligation to recover the aid granted – Reference period – Period fixed by the decision failure to implement which is denied or, subsequently, by the Commission
(Art. 88(2), second subpara., EC)
- 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. 16)
- 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, may submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, 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. 17)
- Because the second subparagraph of Article 88(2) EC does not provide for a pre-litigation phase, in contrast to Article 226 EC, and therefore the Commission does not issue a reasoned opinion allowing Member States a certain period within which to comply with its decision, when the second subparagraph of Article 88(2) EC is applied the reference period can only be that provided for in the decision failure to implement which is denied or, where appropriate, that subsequently fixed by the Commission.
(see para. 24)
JUDGMENT OF THE COURT (Fifth Chamber)1 April 2004(1)
(Failure of a Member State to fulfil obligations – State aid – Second paragraph of Article 88(2) EC – Aids incompatible with the common market – Obligation to recover – Absolute impossibility of implementation)
applicant,
v
defendant,
THE COURT (Fifth Chamber),,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
On those grounds,
THE COURT (Fifth Chamber)
Jann
Timmermans
Rosas
La Pergola
von Bahr
R. Grass V. Skouris
Registrar
President