Judgment of the Court (Sixth Chamber) of 20 October 2011 – Commission v France
(Case C-549/09)
Failure to fulfil obligations – State aid – Aid granted to fish farmers and fishermen – Decision declaring that aid incompatible with the common market – Obligation to recover immediately the aid declared unlawful and incompatible and to inform the Commission – Non-implementation – Absolute impossibility of implementation
1. State aid – Recovery of unlawful aid – Obligation – Duty to implement immediately and effectively the Commission’s decision (Arts 108(2) TFEU and 288 TFEU; Council Regulation No 659/1999, Art. 14(3)) (see paras 26-29, 31)
2. Actions for failure to fulfil obligations – Failure to fulfil the obligation to recover unlawful aid – Defences – Absolutely impossible to implement – Assessment criteria – Difficulties in implementing – Member State obliged to make genuine approaches to the undertakings concerned and to suggest alternative solutions to the Commission enabling those difficulties to be overcome – Difficulty in identifying the recipients not justifying non-implementation of the Commission’s decision (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14(3)) (see paras 33-34, 39)
3. Actions for failure to fulfil obligations – Non-implementation of a Commission decision concerning State aid – Defences – Legality of the decision called in question – Inadmissibility (see para. 43)
Re:
Failure of a Member State to fulfil obligations – Failure to take the measures necessary to implement Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49) – Obligation to recover immediately the aid declared unlawful and incompatible with the common market and to inform the Commission thereof.
Operative part
The Court:
1.
Declares that, by failing to implement, within the prescribed period, Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen, by recovering from the recipients of the aid declared unlawful and incompatible with the common market by Articles 2 and 3 of that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Article 4 of that decision;
2.
Orders the French Republic to pay the costs.
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