Opinion of the Advocate-General
1 In the present proceedings the Kingdom of Belgium applies for the annulment of Commission Decision 97/239/EC of 4 December 1996 concerning aid granted by Belgium under the `Maribel bis/ter scheme' (hereinafter `the decision'). (1)
Facts of the case and national legislation
2 The `Maribel' scheme was introduced by the Law of 29 June 1981 laying down the general principles of social security for wage earners. The scheme consisted essentially in granting employers employing manual workers a reduction in social security contributions for each worker. (2)
3 The Royal Decree of 14 June 1993 (3) introduced a change in that scheme, termed `Maribel bis': the reduction in social security contributions was increased - from respectively BEF 3 000 to BEF 7 200 and from BEF 1 875 to BEF 6 250 per quarter - in the case of employers carrying on their activities primarily in one of the sectors most exposed to international competition. In other words, besides the basic reduction, available to undertakings in general under the above-mentioned Law of 29 June 1981, an additional reduction was granted in favour of certain categories of business. The undertakings which benefited from the higher reduction were those operating predominantly in the sectors involving the extraction and processing of non-energy materials and by-products, the chemical industry, the metal-processing industry, the mechanical engineering industry, the precision and optical instrument industry and certain other processing industries. (4)
4 The `Maribel ter' scheme, which was introduced by the Royal Decree of 22 February 1994, (5) further increased the reduction in the contribution borne by undertakings to respectively BEF 9 300 and BEF 8 437. The sectors concerned were again those most exposed to international competition, but the coverage was widened to include businesses engaged in: i) international transport activities (as from 1 January 1994), ii) air and sea transport or transport-related activities (as from 1 April 1994) or iii) horticulture, forestry or the exploitation of the forests (as from 1 July 1994).
The contested decision
5 The Commission adopted the decision on 4 December 1996. From the statement of reasons for the disputed measure it appears that the Commission had not objected to the Maribel I scheme `since it was general and automatic'. The Maribel bis and ter schemes, by contrast, were considered to be State measures granting aid, in that they accord an additional reduction to undertakings which carry on their principal activity in one of the sectors most exposed to international competition. The amount of aid was perceived to be equal to the difference between the basic reduction, available to all, and the increased reduction, which, as I have said, was reserved for a limited group of businesses.
Article 1 of the decision is worded as follows:
`The increased reduction in social security contributions in respect of manual workers granted under the Maribel bis/ter scheme to employers who carry on their principal activity in one of the sectors most exposed to international competition constitutes illegal State aid because it was not notified to the Commission in advance in accordance with Article 93(3) of the EC Treaty. It is furthermore incompatible with the common market within the meaning of Article 92(1) of the EC Treaty and cannot qualify for any of the derogations laid down in Article 92(2) and (3).'
Under Article 2 of the decision, the Kingdom of Belgium was ordered to `take appropriate measures to terminate forthwith the granting of the increased reductions in social security contributions referred to in Article 1' and to `recover the illegal aid from the recipient undertakings ... in accordance with the procedures and provisions of Belgian law, with interest charged, from the date the aid was granted until the date it is actually repaid, at a rate equal to the percentage value on that date of the reference rate used for the calculation of the net grant equivalent of regional aid in Belgium.'
6 The Kingdom of Belgium puts forward five pleas in law in the present case. In the first, it submits that the measures objected to by the Commission are general in nature, such that they do not favour `certain undertakings or the production of certain goods', as required by Article 92(1) of the Treaty. In the second, it disputes the impact of the Maribel bis/ter scheme on intra-Community trade. In the third, it claims that these schemes would in any case have qualified for the derogation provided under Article 92(3)(c) of the Treaty in that they are compatible with the common market. Finally, in its fourth and fifth pleas, the applicant government challenges the obligation to recover the aid in question as being disproportionate and in any case impossible to carry out.
The general nature of the disputed measures
7 The applicant advances a radical argument in support of its first plea: it denies that Maribel bis/ter has sectorial characteristics and describes it instead as a general arrangement inspired by the need to protect the categories of worker it covers. Consequently, in the view of the applicant, the State measures which the Court is called upon to examine do not constitute an aid subject to the prohibitions set out in the Treaty, and in particular to the obligations laid down in Article 93(3) to notify the Commission in good time of plans to grant aid and not to implement the planned measures before the Commission has adopted a final decision. Hence, according to the Belgian Government, the Commission has wrongly accused the applicant of infringing those obligations.
In examining the application, the Court must therefore ascertain first and foremost whether, because of the effects they are likely to have, the provisions in question produce benefits exclusively for `certain undertakings' or for `the production of certain goods'. (6) This is required by the literal wording of Article 92(1) of the Treaty, from which it is clear that it is always the selectivity of the measure that makes State aid incompatible with the common market. (7)
8 In order to establish whether, as the Belgian Government contends, we are dealing with general measures which for that reason fall outside the scope of Article 92(1), it is obviously necessary to take account of the persons to whom the measures are addressed and to analyze whether the Maribel bis/ter scheme is directed at a category of undertaking considered in its entirety without introducing exemptions from any general scheme which would otherwise apply to those undertakings. In other words, can the derogations or amendments introduced by the disputed measures into the general social security system, which they leave in place, be said to be objectively justified by the economy and the nature of such an arrangement under the ordinary law, having regard to its internal logic, or do they serve the sole purpose of arbitrarily benefiting certain undertakings or specific sectors? (8) It should be held, in my opinion, that a measure is general when it is aimed at achieving equality between businesses. The general principle of equality of treatment is recalled in the provision in Article 92(1) of the Treaty specifically prohibiting measures whereby the State favours certain undertakings or the production of certain goods at the expense of others within the same category of undertaking, to which the provisions adopted should be capable of being applied. Such measures remain subject to the rules on aid because, by operating discrimination that is unjustified and hence expressly prohibited by the Treaty, they do not comply with but contradict the criterion of general measures, which the applicant asks us to take into account.
9 So, how should the measures adopted for the Maribel bis/ter scheme be assessed? The fact that they are sectoral measures - and in that sense discriminatory - is clear from their provisions: this can be seen, moreover, simply by comparing the present provisions with those contained in the Belgian Law adopted for the original Maribel scheme, which dates back to 29 June 1981 (see paragraph 2 above). Article 35 of that Law provides for a reduction in the amount of social security contributions for all undertakings employing manual workers. Construed in this way, the Maribel scheme of 29 June 1981 was based on provisions which could be considered general, as all undertakings without discrimination were permitted to benefit from the reduction in contributions, subject to the conditions set out in the Law.
The fact is, however, that the scheme put in place at that time was subsequently amended by the Royal Decree of 14 June 1993 (Maribel bis; see paragraph 3 above) in order further to reduce the amount of contributions in question, but this time expressly and exclusively in favour of undertakings operating principally in the sectors specifically indicated by the legislature by reference to the statistical classification laid down in Council Regulation (EEC) No 3037/90 (see footnote 4 above). The Belgian legislature adopted the same principle for Maribel ter in the Royal Decree of 22 February 1994 (see paragraph 4 above). This, too, provided for a larger reduction in contributions, and again for the benefit of the undertakings which qualified for the preferential treatment introduced by Maribel bis, with other sectors being added gradually by means of new legislation.
10 Frankly, I do not see how, on the basis of the provisions introduced in 1993 and 1994, it can be maintained that Maribel bis and ter introduce a system of a general nature and scope in the same sense as the first Maribel scheme. On the contrary, the measures under examination derogate from the previous scheme or amend it, upsetting the equilibrium of Belgian legislation on social security in order to provide preferential treatment only for certain businesses by repeatedly increasing the reductions. In this way, an undeniable inequality was introduced in the category of undertakings at which the decrees of 1993 and 1994 were directed. Those in some sectors were favoured; others not. Moreover, the most persuasive proof of such a conclusion is to be found in the text adopted by the Belgian legislature, which increased the reductions in favour of the sectors particularly exposed to international competition. This confirms the observations I have made and reveals unequivocally the nature of the provisions under consideration here: sectoral measures, therefore, in that they were expressly and unequivocally directed towards a specifically determined category of business to the exclusion of others.
11 The applicant government, however, justifies the selectivity of the disputed measures on the grounds that it intended to establish a general scheme, but to introduce it gradually on account of financial constraints, more specifically the present lack of room for manoeuvre in the budget. It therefore contends that the Maribel bis/ter measures are not sectoral measures aimed at favouring solely exporting undertakings but only the first stage of a reform which the Belgian authorities intended to extend gradually to other sectors of the economy. This argument cannot be entertained either, however. In the case before the Court, the general system is the one established by the first Maribel scheme, introduced by the Law of 29 June 1981, while the changes introduced subsequently - in other words Maribel bis and ter - are exceptions to (or derogations from) that system aimed at granting preferential treatment to undertakings most exposed to international competition. So, we are not dealing with a social security reform to be achieved in stages, on account of financial considerations; instead, the measures in question constitute precise derogations from an existing general arrangement, derogations which consist in granting further reductions in favour of a restricted group of businesses to the exclusion of others. It is immaterial that the number of undertakings allowed to qualify for the new and higher reductions in contributions has gradually been increased. No general scheme has yet been created in this way. At most, all that has happened is that the area in which we encounter sectoral preference has been widened, inevitably leading to State aid.
The impact on trade between Member States
12 In its second plea the Kingdom of Belgium claims that the Maribel bis and ter schemes cannot be classified as State aid as they are not of such a nature as to affect intra-Community trade. In any case, according to the applicant, the decision did not state adequate reasons with regard to the point under examination: in particular, since Article 92 of the Treaty defines aid measures in terms of their effects, the Commission should have examined the actual effects which the scheme at issue has on trade between Member States. The defendant therefore breached the obligation laid down in Article 190 of the Treaty to state the reasons on which its decision was based.
I am not persuaded by these arguments either. In the second paragraph of Section IV of the disputed decision, the Commission, after having noted that the system established by the Maribel bis/ter scheme relieves the recipient undertakings of some of their costs and confers on them financial advantages which improve their competitive position, stated the reasons which led it to consider that the scheme in question affected trade between Member States in the following terms: `Given that under the rules, the granting of the additional reduction [in social security contributions] is explicitly reserved to undertakings doing business principally in one of the sectors most exposed to international competition, the goods produced and services provided by those firms compete, by definition, with those produced and provided by foreign undertakings, including those from other Member States, and the aid in question therefore affects intra-Community trade'. in my opinion, this passage in the statement of reasons clearly illustrates the impact of Maribel bis/ter on trade between Member States: it is the very fact that the aid in question benefits undertakings most exposed to international competition that leads the Commission to conclude that it affects intra-Community trade. Moreover, the Court has held that `in certain cases the very circumstances in which aid is granted are sufficient to show that the aid is capable of affecting trade between Member States.' (9) For that purpose, the Commission - again according to the case-law mentioned above - may confine itself to examining the characteristics of the aid in order to determine whether, by reason of the `terms of the programme, it ... is likely to benefit in particular undertakings engaged in trade between Member States'. (10) And it is easy to see, in the case at issue, that aid in favour of undertakings most exposed to international competition by definition confers advantages on businesses `engaged in trade between Member States'. This assumption is further endorsed by consistent case-law, according to which `when State financial aid strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade the latter must be regarded as affected by that aid'. (11)
13 The Belgian Government's complaint of insufficient reasoning is equally unfounded. It is true that, according to the case-law of the Court, while the very circumstances in which the aid has been granted may show that it is liable to affect trade between Member States and to distort competition, the Commission must at least set out those circumstances in the statement of the reasons for its decision. (12) However, where the Commission has explained the respects in which the effect on trade between Member States is obvious, it is not required to carry out an extremely detailed economic analysis. (13) In my opinion, the information required by the Court is set out clearly in the statement of reasons for the contested measure, namely in the part which specifies that the aid confers advantages on undertakings most exposed to international competition and hence to businesses which, by definition, are engaged in trade between Member States. Furthermore, since the aid had not been notified, the Commission was not bound to demonstrate the real effect which it produced. (14) Consequently, I do not consider that this criticism by the applicant government can be upheld.
The compatibility of the Maribel bis/ter scheme with the common market
14 The Belgian Government also maintains that, even if the Maribel bis/ter scheme had indeed been rightly classified as State aid, it would nonetheless have had to be declared compatible with the common market in accordance with Article 92(3)(c) of the Treaty. In relation to this aspect of the disputed decision, the applicant government again contends that the Commission breached its obligation to state the reasons on which its decision was based.
The provision on which Belgium relies is among those laying down the types of aid which may be considered compatible with the common market. Article 92(3)(c) relates to aid to facilitate the development of certain economic activities (or of certain economic areas), provided that such aid does not adversely affect trading conditions to an extent contrary to the common interest. Belgium maintains that Maribel bis/ter pursues the objective of promoting the creation of jobs by conferring advantages solely on the industrial sector and more specifically on manufacturing industry, where it alleges that there was the possibility of encouraging the employment of workers with a low level of qualification. The Commission, for its part, replies that, as it asserted in the statement of reasons for the contested decision, the Maribel bis/ter scheme does not fall within any of the categories of aid to which it considers it can apply the derogations laid down in Article 92(2) and (3) of the Treaty. But above all - and this, it seems to me, is the key reason for the decision, reiterated by the Commission in its written rejoinder - the measures taken by the Belgian Government constitute mere operating aid to the recipient undertakings. Since the increased reduction is granted on a continuous basis for all the manual workers they employ without the creation of new jobs being prescribed or guaranteed or the existing level of employment being preserved, the prohibited measures are devoid of any social and economic compensatory contribution on the part of the recipient undertakings. In this regard, the Commission cites established case-law of the Court, according to which `operating aid, that is to say, aid intended to relieve an undertaking of the expenses which it would itself normally have had to bear in its day-to-day management or its usual activities, does not in principle fall within the scope of Article 92(3) aforesaid ... According to the relevant case-law, the effect of such aid is in principle to distort competition in the sectors in which it is granted, whilst nevertheless being incapable, by its very nature, of achieving any of the objectives of the aforesaid exceptions.' (15) As regards the present case, it is easy to see that the main purpose of the aid at issue was precisely to reduce the costs of exporting undertakings or undertakings competing with foreign undertakings, especially those from other Member States whose goods or services are imported into Belgium. Aid of that kind, by its very nature, adversely affects the situation of competitors in other Member States. According to the defendant, there is therefore no Community interest to justify it, hence its incompatibility with the common market. In other words, where State aid strengthens the position of domestic undertakings in relation to other competing undertakings in intra-Community trade, it transgresses the limits set by Article 92(3)(c) since it automatically entails the risk of affecting the situation of competing undertakings and can therefore not be justified by the common interest.
15 In my opinion, the Commission's view is correct. Above all, as regards the claimed absence of reasons for the decision, it hardly need be noted that the disputed decision sets out an exhaustive and detailed statement of the reasons which led the Commission to refuse to grant the derogation provided for in Article 92(3)(c) of the Treaty.
16 Furthermore, it should be remembered that, for the purposes of the declaration of compatibility of aid in derogation from the prohibition imposed by Article 92(1) of the Treaty, in application of the third paragraph of that article, the Court has always recognized that the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context. (16) Consequently, it is not for the Court to substitute its own economic assessment for that of the Commission; the Court must, in reviewing a decision adopted in this context, confine itself to determining whether the Commission complied with the rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. (17) It seems to me that the disputed decision correctly applied the Commission's guidelines regarding the matter under consideration here, taking into account, among other things, the case-law according to which operating aid to undertakings cannot qualify for the derogation under Article 92(3)(c) of the Treaty. The Belgian Government has not adduced any fact which makes it possible to hold that the Commission, in judging that the disputed aid was not eligible for such a derogation, exceeded the limits of its discretionary power. For that reason, the third plea in the application should, in my opinion, be dismissed.
Recovery of the aid
17 The fourth and fifth pleas in the application relate to the obligation to demand repayment of the aid and may be examined together.
First, the Kingdom of Belgium maintains that the Commission's requirement that the sums granted to the recipient undertakings be recovered is disproportionate in relation to the alleged infringement in that the concept of a general measure is not sufficiently clear. In the applicant's opinion, the difficulty in discerning the distinction between State aid and a general measure would provide justification for a possible infringement, so that recovery of amounts unlawfully paid is an excessively severe sanction in relation to the seriousness of the breach committed. Furthermore, the applicant maintains that the Commission infringed Article 190 of the Treaty by not stating the reasons for demanding that the unlawful aid be recovered. Finally, according to the applicant government, the general principles of legal certainty and sound administration required the Commission to have recourse to less far-reaching measures, such as ordering the suspension of payment of the (unnotified) aid pending the administrative procedure under examination.
The Belgian Government observes, secondly, that recovery of the amounts paid is impossible because of insurmountable administrative difficulties. The amounts would have to be recovered separately from around 2 000 undertakings and would require retrospective verification of both the number of manual workers employed by each of the beneficiaries in the quarterly periods in which the criticized scheme applied and the amount of the reduction granted to each of them. In the meantime, moreover, many undertakings have closed or gone bankrupt.
18 I am puzzled by the arguments put forward by the applicant government. As regards the first of these, I would observe first of all that the suggested difficulty of distinguishing between a general measure and prohibited State aid does not appear insurmountable. I acknowledge that, in certain circumstances, such a distinction may not be easy to make. However, these are borderline cases and different from the one under examination, where the sectoral nature of the measures emerges, as we have clearly seen, from the very wording of the disputed measures, which grant the reduction only to certain categories of undertaking and not to others. In any case, I agree with the Commission that the Belgian authorities, having failed to notify the planned measure in accordance with Article 93(3) of the Treaty, fully accepted the risk of the consequences that could ensue from the legal classification which they decided unilaterally to give to the Maribel bis/ter scheme.
In any event, it is entirely inappropriate to maintain that the sanction is disproportionate to the infringement: as the Court made quite clear long ago, repayment of amounts received by the beneficiaries of aid is the logical consequence of a finding that the aid is unlawful. Repayment is therefore not a sanction but a measure aimed at restoring the competitive balance that had been upset by the granting of an unlawful aid. That is why, according to case-law, `the recovery of State aid unlawfully granted for the purpose of re-establishing the previously existing situation cannot in principle be regarded as disproportionate to the objectives of the Treaty in regard to State aids'. (18)
It is therefore unnecessary to reply in detail to the other criticism of the Belgian Government relating to the alleged breach of the obligation to state the reasons for the decision. Here, too, it is sufficient to recall the case-law of the Court, according to which `the Commission need not provide specific reasons in order to justify the exercise of the power' to order the recovery of aid unlawfully granted. (19) I therefore agree with the Commission that an express statement of reasons is necessary only in the exceptional cases in which, on account of specific circumstances, recovery appears impossible or inappropriate.
The Commission's alleged obligation to order the immediate suspension of the aid by means of an interim decision, as argued here by the applicant government, appears to have no foundation in Community case-law. While the Court has recognized that the Commission has the power to adopt such a conservatory measure when it embarks on examination of unnotified aid, it by no means imposes such an obligation on it. (20)
19 Finally, as regards the second plea concerning the recovery of the aid, I would merely recall that, although the data previously gathered and examined for the granting of the disputed amounts cannot admittedly be used for the recovery thereof, any procedural or other difficulties in implementing the contested measure cannot, according to the Court, have any bearing on the lawfulness of the measure for the purposes of Article 73 of the Treaty. (21) Furthermore, it is for the Commission, and not the Court, to consider any unforeseen and unforeseeable difficulties encountered in the implementation of a decision on State aid or any consequences overlooked by the Commission when adopting the measure. (22) I therefore consider that I must adhere to those rulings of the Court. They constitute consistent case-law, which prompts me to propose the rejection of this final plea of the application.
Conclusion
In the light of the foregoing considerations, I propose that the Court should:
(1) dismiss the application;
(2) order the Kingdom of Belgium to pay the costs.
(1) - OJ 1997 L 95, p. 25.
(2) - The reduction was initially set at 6.17% of the wages of the workers concerned. By Royal Decree of 12 February 1993, it was fixed at BEF 1 875 per quarter for each worker employed. For undertakings employing fewer than twenty workers, the reduction in respect of their first five workers was fixed at BEF 2 825 per quarter (BEF 3 000 as from 1 July 1993).
(3) - Arrêté royal du 14 juin 1993, modifiant l'Arrêté royal du 12 février 1993 portant exécution de l'article 35, paragraphe 1, dernier alinéa, de la loi du 29 juin 1981, établissant les principes généraux de la sécurité sociale des travailleurs salariés (see Article 1).
(4) - The Belgian legislator identified the sectors concerned by reference to divisions 13 to 22 and 24 to 36 of the statistical classification pursuant to Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community (OJ 1990 L 293, p. 1).
(5) - Arrêté royal du 22 février 1994, modifiant l'Arrêté royal du 12 février 1993 portant exécution de l'art. 35, paragraphe 1, dernier alinéa, de la loi du 29 juin 1981 établissant les principes généraux de la sécurité sociale des travailleurs salariés (see Articles 2 and 3).
(6) - The concept of prohibited State aid hinges not only on the `selectivity' of the measure but also on the effect it has on competition, as emerges from an unequivocal line of judgments (see, among many others, the judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13), according to which `the aim of Article 92 is to prevent trade between Member States from being affected by benefits granted by the public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or the production of certain goods. Accordingly, Article 92 does not distinguish between the measures of state intervention concerned by reference to their causes or aims but defines them in relation to their effects. Consequently, the alleged fiscal nature or social aim of the measure in issue cannot suffice to shield it from the application of Article 92.' The Court therefore affirmed that the partial reduction of social charges in favour of undertakings of a particular industrial sector constitutes aid within the meaning of Article 92 of the EC Treaty where that measure is intended partially to exempt such undertakings from the financial charges arising from the normal application of the general system of compulsory contributions imposed by law (ibid., paragraph 15).
(7) - There may, of course, be sectoral measures which nevertheless do not constitute State aid in that they do not entail any direct or indirect transfer of State resources to businesses; see the judgment in Case C-189/91 Kirsammer-Hack v Nurhan Sidal [1993] ECR I-6185 on the exclusion of small businesses from the scope of regulations protecting workers against unfair dismissal for which German law provides.
(8) - The criterion `that the measure should constitute a derogation ... from the scheme of the general system in which it is set', which makes it possible to distinguish between sectorial and general measures, was suggested by Mr Advocate General Darmon in the Sloman Neptun Case (Joined Cases C-72/91 and C-73/91 [1993] ECR I-903, paragraph 50).
(9) - Judgment in Case 248/84 Germany v Commission [1987] ECR 4013, paragraph 18.
(10) - Ibid., paragraph 18.
(11) - Judgment in Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 40.
(12) - See, among many others, the judgment in Joined Cases C-329/93, C-62/95 and C-63/95 Germany et al. v Commission [1996] ECR I-5151, paragraph 52.
(13) - See the judgment in Case T-214/95 Vlaamse Gewest v Commission [1998] ECR II-717, paragraph 67.
(14) - `If the Commission were required in its decision to demonstrate the real effect of aid which had already been granted, that would ultimately favour those Member States which grant aid in breach of the duty to notify laid down in Article 93(3) of the Treaty, to the detriment of those which do notify aid at the planning stage' (judgment in Case C-301/87 France v Commission [1990] ECR I-307, paragraph 33).
(15) - Judgment in Case T-459/93 Siemens v Commission [1995] ECR II-1675, paragraph 48. See also the judgments in Cases T-214/95 (cited in footnote 13 above), paragraphs 42 and 43, and C-86/89 Italy v Commission [1990] ECR I-3891, paragraph 18.
(16) - See, among many others, the judgments in Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraphs 17 and 24, and Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 34.
(17) - See among many others the judgments in Joined Cases T-371/94 and T-394/94 British Airways et al. v Commission [1998] ECR II-0000, paragraphs 79-81, and in Case T-149/95 Ducros v Commission [1997] ECR II-2031, paragraph 63.
(18) - See, among many others, the judgment in Joined Cases C-278/92 to C-280/92, cited in footnote 11 above, paragraph 75. See also the judgment in Case C-350/93 Commission v Italy [1995] ECR I-699, paragraphs 21 and 22, according to which `the Court has consistently held that the obligation on a State to abolish aid regarded by the Commission as being incompatible with the common market has as its purpose to re-establish the previously existing situation. That objective is attained once the aid in question, increased where appropriate by default interest, has been repaid by the recipient ... By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored.'
(19) - See the judgment in Joined Cases C-278/92 to C-280/92, cited in footnote 11 above, paragraph 78.
(20) - See the judgments in Case C-301/87 (cited in footnote 14 above), paragraph 19, and Case T-49/93 [1995] SIDE v Commission ECR II-2501, paragraph 83. Similarly, pending an examination of an aid measure, the Commission may require the repayment of the amounts which have already been paid without prior notification, but it is not obliged to do so, since the Court has not held that it has the power to declare aid illegal solely on the ground that the obligation to notify it was not observed by the Member State concerned, and without investigating whether the aid in question is compatible with the common market (see the SIDE judgment, cited above, paragraph 84).
(21) - See the judgments in Case C-142/87 [1990] Belgium v Commission ECR I-959, paragraph 63, and Case C-42/93 [1994] Spain v Commission ECR I-4175, paragraph 33.
(22) - See, among many others, the judgment in Case C-348/93 Commission v Italy [1995] ECR I-673, paragraph 17. Under Article 5 of the Treaty, the Commission and the Member State involved must work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on State aid.
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